揭开雇主“替代责任”的面纱——兼论《侵权责任法》第34条之解释论基础

我国民法学界和立法机关的主流观点认为,雇主责任的性质是替代责任,这种看法并不合理。替代责任原理及规则渊源于英美普通法,其立基于近代手工业社会,反映了当时较为简单的雇佣关系。到了现代工业风险社会,随着企业规模的扩大和雇佣关系的复杂化,这一原理及规则不能为遭受企业活动侵害的受害人提供充分的法律保护,也不能为雇主积极履行义务提供法律上的激励机制。因此,使用替代责任原理并不能对《侵权责任法》第34条作出合理、妥当的解释。目前,英美法上的"企业责任理论"和德国法上的"组织过错理论"反映了比较法上雇主责任领域的最新发展趋势。     

Automated decision-making in the EU Member States: The right to explanation and other “suitable safeguards” in the national legislations

The aim of this paper is to analyse the very recently approved national Member States’ laws that have implemented the GDPR in the field of automated decision-making (prohibition, exceptions, safeguards): all national legislations have been analysed and in particular 9 Member States Law address the case of automated decision making providing specific exemptions and relevant safeguards, as requested by Article 22(2)(b) of the GDPR (Belgium, The Netherlands, France, Germany, Hungary, Slovenia, Austria, the United Kingdom, Ireland).The approaches are very diverse: the scope of the provision can be narrow (just automated decisions producing legal or similarly detrimental effects) or wide (any decision with a significant impact) and even specific safeguards proposed are very diverse.After this overview, this article will also address the following questions: are Member States free to broaden the scope of automated decision-making regulation? Are ‘positive decisions’ allowed under Article 22, GDPR, as some Member States seem to affirm? Which safeguards can better guarantee rights and freedoms of the data subject?In particular, while most Member States refers just to the three safeguards mentioned at Article 22(3) (i.e. subject's right to express one's point of view; right to obtain human intervention; right to contest the decision), three approaches seem very innovative: a) some States guarantee a right to legibility/explanation about the algorithmic decisions (France and Hungary); b) other States (Ireland and United Kingdom) regulate human intervention on algorithmic decisions through an effective accountability mechanism (e.g. notification, explanation of why such contestation has not been accepted, etc.); c) another State (Slovenia) require an innovative form of human rights impact assessments on automated decision-making.     

论刑法第338条的立法缺陷及完善

新刑法自实施至今已有7年光景,但实践中将严重污染环境行为作为犯罪追究的情况却非常少见,我国的环境污染问题依然十分突出.究其原因,刑法第338条的立法缺陷不容回避.刑法第338条应修改补充为两款,对两种不同罪过形式的行为在罪名和量刑上加以区分,以充分体现刑法罪刑相适应原则的要求,更好地保护人类赖以生存的自然环境.     

暗示法与侦查心理战

侦查过程是一种心理战的过程,需运用一定的心理战术方法。暗示法是一种非常重要的心理战术法,它有多种表现形式,但运用最多的是言语暗示法、物品暗示法和情景暗示法。     

Independence of data privacy authorities (Part I): International standards

Part I of this article analyses the views of learned commentators on what constitutes the ‘independence’ of data protection authorities (DPAs). It concludes that a more satisfactory answer needs to be found in the international instruments on data privacy and on human rights bodies, their implementation and judicial interpretation, and in the standards that have been proposed and implemented by DPAs themselves. It finds that only the OECD and APEC privacy agreements did not require a DPA (and therefore have no standards for its independence). Thirteen factors were identified as elements of ‘independence’ across these instruments and standards, five of which were more commonly found than others. Part II of the article will consider how these criteria have been implemented in laws in the Asia-Pacific.     

纪检监察证据与刑事司法证据的衔接机制研究一以新《刑诉法》第52条第二款为视角简

纪检监察机关在查办党政干部违法违纪案件的过程中,往往会发现相关人员涉嫌犯罪的事实,由此形成的纪检监察证据便成为了刑事司法证据的重要来源.基于法理依据和司法实践的需要,纪检监察证据有必要通过一定的规则衔接转化为刑事司法证据保障刑事诉讼的顺利进行,与此同时还应完善相关的配套机制,以求实现惩罚犯罪与保障人权的有机统一.     

有机磷农药中毒的人体血液致死浓度探讨

对 4年间 6家医院所有门急诊有关敌敌畏、甲胺磷、乐果三种有机磷农药中毒病例进行了调查分析。运用气相色谱法对其血液中的浓度进行测定。采用 Bliss法,计算其死亡率和昏迷率的加权直线回归方程,并获得其经救治后血液半数致死浓度 LC50、半数致昏迷浓度 CC50。综合文献和临床实践,认为及时的救治对中毒病例的治疗转归有较大影响,其自然的血液半数致死浓度应在经救治的半数致死浓度 LC50和半数致昏述浓度之间。综合半数致死浓度和半数致昏迷浓度,计算其自然的半数致死浓度 LCe50值。     

Independence of data privacy authorities (Part II): Asia-Pacific experience

Part I of this article in [2012] 28 CLSR 3-13 analysed the views of learned commentators on what constitutes the ‘independence’ of data protection authorities (DPAs). It concluded that a more satisfactory answer needed to be found in the international instruments on data privacy and on human rights bodies, their implementation and judicial interpretation, and in the standards that have been proposed and implemented by DPAs themselves. It found that only the OECD and APEC privacy agreements did not require a DPA (and therefore had no standards for its independence). Thirteen factors were identified as elements of ‘independence’ across these instruments and standards, five of which were more commonly found than others.     

In silico toxicity as a tool for harm reduction: A study of new psychoactive amphetamines and cathinones in the context of criminal science

The emergence of new psychoactive substances (NPS) has raised many issues in the context of law enforcement and public drug policies. In this scenario, interdisciplinary studies are crucial to the decision-making process in the field of criminal science. Unfortunately, information about how NPS affect people's health is lacking even though knowledge about the toxic potential of these substances is essential: the more information about these drugs, the greater the possibility of avoiding damage within the scope of a harm reduction policy. Traditional analytical methods may be inaccessible in the field of forensic science because they are relatively expensive and time-consuming. In this sense, less costly and faster in silico methodologies can be useful strategies. In this work, we submitted computer-calculated toxicity values of various amphetamines and cathinones to an unsupervised multivariate analysis, namely Principal Component Analysis (PCA), and to the supervised techniques Soft Independent Modeling of Class Analogy and Partial Least Square-Discriminant Analysis (SIMCA and PLS-DA) to evaluate how these two NPS groups behave. We studied how theoretical and experimental values are correlated by PLS regression. Although experimental data was available for a small amount of molecules, correlation values reproduced literature values. The in silico method efficiently provided information about the drugs. On the basis of our findings, the technical information presented here can be used in decision-making regarding harm reduction policies and help to fulfill the objectives of criminal science.