公司法第16条的规范意义

公司法第16条是争议较多的条款之一。理论和实务中围绕违反第16条提供的公司担保或投资的效力展开讨论,虽然观点不尽相同,但大多围绕第16条是否为强制性规定来论证各自的观点。这种解释有悖于第16条的立法目的。事实上,第16条并非旨在规范公司对外担保或投资的行为,而是规范公司内部关于担保或投资事项的意思决定程序。基于第16条的立法背景及其在公司法规范体系中的意义,违反第16条的直接后果是组织法上的相应责任,影响公司关于对外担保或投资事项的董事会或者股东(大)会决议的效力。即使公司对外担保或投资行为未经董事会或者股东(大)会决议,或者董事会或股东(大)会决议被撤销或者确认无效,在第三人善意的情况下,亦不影响公司对外担保或投资行为的效力。     

复议《道路交通安全法》第110条

《道路交通安全法》第110条中的吊销驾驶证,从行政法角度而言,是行政的强制执行。用吊销驾驶证之＂手段＂去追求处罚当事人放弃合法听审权利之＂目的＂,手段与目的间并不存在实质之内在联系或合理正当之连结关系,属于立法上违反＂不当连结禁止原则＂。从宪法角度看,是对人民工作基本权的侵害,且这种侵害已达侵害最强烈之职业禁止的程度,...     

Inducing corporate compliance: A compound corporate liability regime

Corporate liability regimes have two major social goals: (i) inducing corporations to internalize all social ramifications of their activity; and (ii) inducing corporations to prevent, deter, and report their employee misconduct. The scholarly polemic has shown that none of the liability regimes recognized thus far in the literature efficiently satisfies both social goals. Following a Law and Economics approach, this paper develops an innovative regime that may comprise an optimal corporate liability framework in most settings. The Compound Corporate Liability Regime developed in this paper is a two-layer strict liability regime. Under this regime, corporations that self-report their employee misconduct incur a sanction that is reduced by the variable enforcement costs saved due to their self-reporting. Such a liability framework aligns social and corporations’ interests, and thereby satisfies both social goals of corporate liability regimes.     

入世议定书第15条对中美贸易影响研究

入世议定书第15条明确了中国作为非市场经济国家的最长年限为15年。目前,美国仍然制定国内法来确定市场经济国家的标准,导致中国企业在反倾销案中处于不利地位。应当在理解其签订的背景下正确对待,美国近期承认中国为市场经济国家的可能性较小,因而要据法力争以减弱因非市场经济地位引发的贸易摩擦和不利影响。     

A Behavioural Understanding of Privacy and its Implications for Privacy Law

This article draws upon social interaction theory (the work of Irwin Altman) to develop a theory of the right to privacy, which reflects the way that privacy is experienced. This theory states that the right to privacy is a right to respect for barriers, and that an invasion of privacy occurs when a privacy barrier is penetrated. The first part of the paper establishes the position of the author's theory in the existing scholarship. The second part of the paper expands upon the theory to explain the nature of privacy barriers and the way that the author's theory manages a number of specific privacy issues, including threats to privacy, attempted invasions of privacy, unforeseeable interferences with privacy and waiving the right to privacy. The final part of the paper demonstrates the impact that this approach to privacy could have upon judicial reasoning, in particular Article 8 European Convention on Human Rights.     

User review portability: Why and how?

User reviews of products on the e-commerce platforms are a critical determinant of inter-platform competition, as a large number of consumers base their purchasing choices on the related reviews written by other users. The network effects between the number of reviews and new users give a sustainable competitive advantage to incumbent platforms. While business literature has recognised the commercial value of the user reviews, legal scholarship has paid little attention to levelling the playing field between incumbents and new e-commerce platforms by exploring the portability of user reviews. This paper bridges this gap. We explore the possibility of porting user reviews through two legal mechanisms—first, traditional Intellectual Property law; second, the new Right to Data Portability (RtDP) as enshrined in the GDPR. After recognising the limitations of these mechanisms in enabling the portability of reviews, we suggest that pure data aggregators, such as Personal Information Management Services (PIMS), are best placed to make user reviews available to multiple platforms.     

Keeping the Family Together: Why New York Must Amend Evidence Rules to Protect a Parent's Right to be a Parent

In New York, hearsay statements made by children may be admissible in a child protective proceeding. Under Article 10 of the Family Court Act, an out‐of‐court statement only requires corroboration to support the statement's reliability. The Family Court has the choice to determine what evidence will be sufficient for corroboration. In comparison to other statutes from different states, New York's statute is very broad. This Note proposes amending the current evidence statute under Article 10 of the Family Court Act to strengthen the standard for admitting hearsay statements in child protective proceedings.     

加强公安派出所建设 增强公安机关的整体战斗力

《公安部关于进一步加强公安派出所的意见》即"37条"精神,是今后一个时期指导公安派出所工作的纲领性文件,各级公安机关都要组织广大民警学习和掌握其精神,争取党委政府给予派出所建设更多的关心、支持和帮助.     

Sexual Orientation Discrimination after Grant v South-West Trains

In Grant v South-West Trains [1998] ECR I-621, the European Court of Justice implied that, as a general matter, discrimination against an employee on the ground of sexual orientation did not violate Article 141 EC. This article argues that Grant rests on shaky foundations, in that it is conceptually inconsistent with the Court's earlier decision in P v S and Cornwall County Council [1996] ECR I-2143. Furthermore, the scope of Grant has since been qualified by decisions of the European Court of Human Rights – decisions which may well have undermined the status of the case more broadly. However these difficulties are ultimately resolved, the Court of Justice's treatment of sexual orientation discrimination exposes flaws in its approach as a self-proclaimed constitutional court.     

Japan＇s ＂unsettling＂ past： Article 11 of San Francisco Peace Treaty and its ramlncatlons

Article 11 of the Treaty of Peace with Japan （San Francisco Peace Treaty） has become a rallying point for some activists and historians in their endeavor to have Japan recognize its ＂war responsibility＂ and redress its ＂unsettled past＂. The provision stipulates Japan＇s acceptance of the ＂judgments of the International Military Tribunal for the Far East and of other Allied War Crimes Courts both within and outside Japan＂. The wording of this provision, which is ambiguous enough to leave a room for its re-interpretation later, was a result of a compromise among the World War lI Allies. Yet, neither archival investigation of the article＇s drafting process nor a survey of the opinions of U.S. legal experts in the public international did not prove the validity of the revisionist thesis. Nevertheless, the treaties Japan signed with its former colony （Korea） and belligerent （China） left the settlement of war-related issues obscure, creating a leeway for initiating later controversies. The end of the Cold War heralded the re-evaluation of World War I1 settlements. The subsequently created agitated environment surrounding the historical discussion of Japan＇s so-called ＂unsettled＂ past has been ＂unsettling＂ enough to prevent the Japanese leaders from establishing a uniform interpretation of Article l l, and has added impetus to the movements pressuring Japan to recognize its ＂war responsibility＂. Although interested parties have so far cited Article 11 mainly to demand ＂inaction＂ from Japan, such as to discourage Japanese political leaders from visiting the Yasukuni Shrine, there is a growing indication that some may well utilize it to demand Japan＇s ＂action＂--to pay indemnities to the victims of Japan＇s alleged atrocities through various forms of redress movements.