漫谈海洋污染的民事责任和刑事责任

简单介绍国际社会关于油轮溢油、燃油溢油及运输有毒有害物质致海洋污染损害的民事责任与赔偿方面的立法努力以及区域性组织等加强船源污染刑事责任方面的立法,认为对海洋污染实行更苛刻的民事责任制度,设立更高的赔偿责任限额或者干脆取消限额,进行更多的刑事立法等是不可取的,指出规制海洋污染必须体现国际性,并最大限度地避免区域性立法。     

Scope of liability: the vanishing distinction between negligence and strict liability

The duty-of-care requirement cannot be used anymore as the touchstone to differentiate negligence from strict liability because it can be found in many forms of the latter. Duty of care is smuggled into strict liability hidden under the scope of liability requirement (traditionally called “proximate causation”). As far as the scope of liability requirement is common to negligence and to many forms of strict liability, there is a fairly large common ground to both liability rules, and consequently the marginal Hand formula is applied to both rules. Indeed, under a negligence rule, the marginal Hand formula is applied twice: first to assess whether or not the defendant did breach his or her duty of care, and, second, to delimit whether or not the defendant’s behavior was a proximate cause of the harm suffered by the victim. However, under a strict liability rule, the Hand formula is applied only once when the proximate causation question is raised. Traditional law and economics analysis has almost always taken the normative question raised by the causation requirement as given, which is a potential major problem due to the importance of scope of liability or proximate causation in legal practice. Defining the scope of liability, that is to say, the boundaries of the pool of potential defendants, is the basic legal policy decision for each and every liability rule. In the normative model presented in this paper, the government first chooses efficient scope of liability, and given the scope of liability, the government then decides the liability rule and damages that guarantee efficient precaution. In the article, most known scope of liability rationales developed by both common law and civil law systems are discussed in order to show the substantial common ground between negligence and strict liability.     

Long-tail liability law reform

There is a need for the law to evolve so that corporations are obliged to make proper provision for liabilities to unascertained future creditors. However, implementation of long-tail liabilities is far from straightforward and has many repercussions for both corporations and personal injury law. In October 2005 the Parliamentary Secretary to the Treasurer requested the Corporations and Markets Advisory Committee to consider a "referred proposal" designed to achieve comprehensive and principled law reform. Analysis of the referred proposal reveals many shortcomings, a number of which have been addressed by the Committee in its June 2007 Discussion Paper, Long-Tail Liabilities: The Treatment of Unascertained Future Personal Injury Claims. This editorial urges further and reflective analysis of the referred proposal and of the Committee's tentative suggestions in order to achieve a balance among the entitlements of unascertained future creditors, other known creditors, shareholders, corporations' financial viability, and the conceptual integrity of corporations law.     

略论会计法律责任

会计法律责任主要是指编造和提供虚假会计信息。在市场经济的条件下提高对改进会计法律责任的认识,明确会计法律责任的承担,对于会计信息质量的提高有很大的裨益。     

Absolute liability in contract

Kingship, Law and Society: Criminal Justice in the Reign of Henry V. Edward Powell. Oxford. 1989. Clarendon Press, xii + 319 pp. (incl. index). £35.00 cased.

Sir Henry Maine: A Study of Victorian Jurisprudence. R.C.J. Cocks. Cambridge. 1988. Cambridge University Press, viii + 224 pp. (incl. index). £25/$49.50 cased.

The Birth of the English Common Law (2nd ed). R. C. Van Caenegem. Cambridge. 1988. Cambridge University Press, xviii + 160 pp. (incl. index). £27.50/ $39.50 cased, £9.50/$13.95 limp.

Inventing the Industrial Revolution. The English Patent System 1660–1800. Christine Macleod. Cambridge. 1988. Cambridge University Press, xii + 302 pp. £25 cased.

The Constitutional Jurisprudence of the Federal Republic of Germany. D.P. KOMMERS. Duke University Press. 1990. xxxvi + 590 pp. (incl. index). £29.25 paperback.

Sokrates. Johannes Irmscher. (3rd ed.) Leipzig. 1989. Verlag Phillip Reclam jr. 120 pp. (inch index).

The Welsh Laws. T.M. Charles‐Edwards. Cardiff. 1990. The University of Wales Press for the Welsh Arts Council. 106pp. £3.50 limp.     

The cost of delegated control: vicarious liability, secondary liability and mandatory insurance

Vicarious liability, secondary liability and mandatory insurance are three systems for attaining judgment-proof or disappearing injurers’ precaution through the direct control of a second party (the vicariously liable principal, the secondary liable party, or the insurer). In this way, the legal system delegates control over some injurers to private entities. Such mechanisms generate monitoring costs. In this paper, we consider who bears the cost of such monitoring, and the effect thereof on the equilibrium level of precautions under different liability rules. We use these findings to explain some of the patterns in the coupling of substantive standards of liability and legal regimes of delegated control.     

论药品的警示缺陷责任

药品生产商对药品的警示缺陷应承担无过错责任。在追究药品生产商的严格责任时，应注意考察药品生产商在药品危险警示方面是否尽到了充分的、持续的、及时的注意义务。在药品生产商对药品危险具有充分知识而未尽警示义务的情况下，药品生产商应对药品对消费者所带来的损害负赔偿责任。对于处方药，药品生产商应对医师尽危险警示义务，这归因于医师处于权衡利弊并减少损害风险的位置。当药品生产商的促销行为使得医师作为评估者和决策者的地位减弱或丧失时，药品生产商应对消费者直接尽警示义务。药品危险警示义务的主体是生产商。药师不负有一般的药品危险警示义务，除非存在足以使人警觉从而引发较大注意义务的额外因素。     

Tacit collusion and liability rules

This paper demonstrates that the likelihood of tacit collusion in a given oligopolistic industry may depend on the kind of liability rule applied to the industry. We study typical settings for the analysis of product liability and environmental liability. For the latter, it is established that tacit collusion is more likely under strict liability than under negligence. However, the two liability rules are equivalent with regard to their effects on tacit collusion in the model pertaining to product liability. This context-dependent impact on tacit collusion can be traced back to a difference in the shape of firms’ cost functions.     

The liability of the duressor

Liverpool Law Review - It has been argued that a better understanding of the nature of excuses gives rise to solutions to many problems concerning the liability of secondary parties. The duressor...     

Optimal liability for optimistic tortfeasors

As Alicke and Govorun (The self in social judgment, Psychology Press, New York, 2005, p. 85) observed, “most people are average, but few people believe it.” Optimism and other forms of inflated perception of the self lead parties to exercise suboptimal precautions when undertaking risky activities and often undermine the incentive effects of tort rules. In this paper, we show that the presence of optimism undermines several critical assumptions, upon which law and economics scholars have relied when modeling the incentive effects of tort law. We construct a model representing the incentives of “optimistic” tortfeasors and victims, and consider mechanisms for mitigating the effects of biased decision-making. We show that in the presence of optimism, comparative negligence rules are preferable to contributory negligence rules (i.e., the traditional equivalence between contributory and comparative negligence does not hold). Further, we discover the surprising conclusion that the most effective way to correct optimism may often simply be to “forgive” it, shielding optimistic individuals from liability, rather than holding them liable for the harms they cause.