知识产权国际博弈与中国话语的价值取向

美国在知识产权全球治理中呈现出一味强化权利保护的价值倾向。受其影响,知识产权保护的国际规则呈现不断强化之势。但是,美国在国内法中存在对知识产权强化保护的平衡机制,有别于其对外片面输出强化保护规则。一味强化保护的知识产权制度会走向偏颇。我国在知识产权国际博弈和对话中需要提出自己的话语和话语体系,其前提是明确本国话语的价值取向。相比历史、文化取向而言,话语构造的价值取向路径具有优越性。在国际博弈中,我国宜秉持并提倡知识产权法的二元价值取向。二元价值取向契合知识产权法基本原理,体现了世界共同价值,其核心作用在于纠偏,我国应坚持和发扬这一价值取向。     

反垄断法上专利强制许可抗辩的德国经验与启示

为弥补专利法强制许可保护竞争的不足,德国学界与法院认可了反垄断法上专利强制许可的存在,进而在司法实践中发展出专利强制许可抗辩。专利强制许可抗辩的本质是一种特殊的利益平衡路径,不仅可协调反垄断法与知识产权法的紧张关系,有效保证专利权人与需求人之间的利益平衡,且有利于诉讼成本的节省。从权利保护的及时性及竞争秩序维护的必要性角度出发,我国应采纳专利强制许可抗辩,并完成要件的厘清。     

A Profile of Violent Offenders in Spanish Prisons

In Europe, it is relatively uncommon to find studies that investigate the criminal profiles of violent offenders, especially infrequent are those that pay special attention to offenders’ mental health/substance use disorders and histories of violence during childhood. The current research explores whether inmates who are incarcerated for violent offenses (n = 536) in Spain are different in terms of the aforementioned factors as compared to inmates incarcerated for non-violent offenses (n = 536). Multivariate logistic regression analysis revealed that violent offenders, as compared to their non-violent counterparts, were more likely to be younger, younger at the time of their first arrest, single, use alcohol, receive treatment in prison for anxiety or schizophrenia, and report physical abuse during childhood.     

U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?

ABSTRACT

Family court and abuse professionals have long been polarized over the use of parental alienation claims to discredit a mother alleging that the father has been abusive or is unsafe for the children. This paper reports the findings from an empirical study of ten years of U.S. cases involving abuse and alienation claims. The findings confirm that mothers’ claims of abuse, especially child physical or sexual abuse, increase their risk of losing custody, and that fathers’ cross-claims of alienation virtually double that risk. Alienation’s impact is gender-specific; fathers alleging mothers are abusive are not similarly undermined when mothers cross-claim alienation. In non-abuse cases, however, the data suggest that alienation has a more gender-neutral impact. These nuanced findings may help abuse and alienation professionals find some common ground.     

日韩专利行政部门确认专利侵权制度比较研究

日本和韩国均由专利复审委员会来判断第三人实施的技术方案是否落入涉案专利权的保护范围,即日本的专利侵权判定制度和韩国的专利权范围行政确认制度。日本的制度实际上是行政机关鉴定制度,其处理的案件数量不多,因此有效性遭到质疑。在韩国的制度下,行政确认的结果具有法律效力,却因此被指责与侵权诉讼重复且两种程序的法律关系模糊。两国制度的共同优势在于可实现专利侵权纠纷数量控制、具有专业性和公正性以及提供不侵权的确认程序等,因此属于行政机关实施的灵活的侵权纠纷解决或侵权判断机制。对日韩两国的比较研究可对中国提供有益启示,因为在中国仍需要保留专利侵权纠纷的行政处理制度,并需要对该制度作出进一步完善。     

Child Sexual Abuse Perpetrated by Women: Case Series and Review of the Literature

The literature on child sexual abuse (CSA) perpetrated by female sexual offenders (FSOs) is exiguous, and many studies have focused on judicial databases. The present retrospective study, instead, analyzed clinical and judicial data of a group of both victims and alleged FSOs, to additionally include women who have not been convicted by the criminal justice system, but who hold strong clinical suspicions of being perpetrators of CSA. The medical records and the Court files of 11 children and their eight suspected FSOs have been collected and critically reviewed in light of the literature to date. This approach allowed for a deeper understanding of the relationship between child and FSO. The authors hypothesize that the victims’ severe psychopathological outcomes were a result of a failure to develop appropriate attachments with their prospective caregivers, which could have been damaged by the pathological relationship with FSOs, who were the victims’ caregivers.     

Weighing Ethical Considerations in Proposed Non-recent Child Sexual Abuse Investigations: A Response to Maslen and Paine’s Oxford CSA Framework

Questions about when it is right for police forces to investigate alleged offences committed in the more or less distant past have become increasingly pressing. Recent widely publicized cases of child sexual abuse (CSA) and exploitation, sometimes involving high profile individuals, have illustrated the ethical, psychological, and forensic complexities of investigating non-recent child sexual abuse. Hannah Maslen and Colin Paine have developed the Oxford CSA Framework to assist police to weigh the various ethical considerations that militate for and against initiating a CSA investigation. While such a tool is to be welcomed, and while there is much that is helpful in Maslen and Paine's approach, we suggest that the Oxford CSA framework could be strengthened. Our first suggestion is to abandon a proposed distinction between a set of considerations that is said to generate a “presumption” in favor of investigation and other considerations that may supplement or oppose this presumption. Our second suggestion is to review the weightings applied to the considerations within the model, which lack clear justification and create problematic effects. Finally, we suggest that referring the Oxford CSA Framework to a panel with lived and professional experience of CSA could serve important procedural justice goals and enhance the Framework's recommendations.     

Postmortem Changes of Female External Genitalia and Their Importance in Suspected Sexual Abuse

Examination of the female external genitalia to assess for sexual abuse is performed in living individuals, and the interpretation of the findings is based on evidence-based studies. However, in the deceased, no such studies are available, and postmortem changes could present as suspicious findings that can be mistaken for trauma. Patches of discoloration in the hymen were reported previously in one case as hypostasis (i.e., livor and lividity), and based on this finding, it was listed as a finding that is not associated with trauma. This was a retrospective study that was conducted in the Center of Forensic and Legal Medicine in Dammam, Saudi Arabia over a 4-year period. The study included 30 deceased women in whom photographic documentation of their external genitalia was assessed for postmortem changes. The postmortem interval ranged from less than 24 h to more than 100 days, and the ages of these deceased women were in the 20–40 year-old age group. In cases where the hymen, vagina, and/or fossa navicularis were clearly visible, none of these areas showed any hypostatic discoloration. A comparison between antemortem and postmortem appearance of the hymen in one case clearly showed the absence of hypostatic changes in the hymen. In conclusion, any discoloration of the external genitalia that is detected in a female decedent requires serious consideration.     

Children’s attitudes towards animal cruelty: Exploration of predictors and socio-demographic variations

ABSTRACT

Assessing the risk for animal cruelty is imperative, yet understudied and problematic due to the sensitivity of the topic. Early prevention is critical, yet very little research examines cruelty when it first appears in childhood. The aim of this study was to explore children’s attitudes towards types of animal cruelty, to investigate potential demographic differences, and to examine potential associations between acceptance of cruelty and cognitive and affective factors that place children ‘at-risk’ for cruelty perpetration. Questionnaire data was collected from 1127 children in schools. The results indicate that cruelty attitudes are predicted by some demographic variables such as urban living, being male, younger age and not having pets, but depend on the type of animal cruelty. Acceptance of cruelty predicted low compassion and low reported humane behaviour towards animals. Acceptance of cruelty was predicted by negative attitudes towards animals, lower beliefs in animal minds and low attachment to pets, signifying the importance of targeting such variables in future prevention programmes. This study is an original contribution to research into childhood animal cruelty in the general population, with implications for designing and implementing early prevention programmes that tackle problematic attitudes to cruelty.