《合同法》与合同诈骗罪之"合同"

合同诈骗罪分离于普通的诈骗罪,同时源于利用"经济合同"诈骗的基本形式,从而产生了关于合同诈骗罪之"合同"在内容、形式及合同主体的涵盖范围与《合同法》的是否一致之分歧。争议颇大的刑事理论导致了刑事司法实践案件的处理不一。因此,理清这些相关问题,对于合同诈骗罪的正确认定意义重大。     

Varieties of Welfarism in European Contract Law

Abstract:  A scheme describing six welfarist directions in modern contract law is used to assess the extent to which current European measures that affect contract law have embraced these welfarist developments. Although some EC legislation may be interpreted as possessing elements of a limited welfarist perspective, it is concluded that bolder welfarist strands have proved largely absent. A European civil code or contract code would prove too static an instrument to promote the evolution of further welfarist developments.     

Consent,Fraud and Family Law

In two recent cases the Supreme Court unanimously clarified that one party's fraudulent non-disclosure of material facts 'unravels' any agreement made in their absence. Because the parties' agreement is a sine qua non of a consent order, the order may be set aside, despite the desirability in family law of clean break and certainty. Victims of fraud in matrimonial proceedings should not be left in a worse position than victims in other civil proceedings. However, while consistency across different areas of civil law was important here, are there any circumstances in which inconsistency may be justified?     

Social Justice in European Contract Law: a Manifesto

The Study Group on Social Justice in European Private Law are: Gert Brüggemeier (Bremen), Mauro Bussani (Trieste), Hugh Collins (London), Aurelia Colombi Ciacchi (Bremen), Giovanni Comandé (Pisa), Muriel Fabre-Magnan (Nantes), Stefan Grundmann (Berlin), Martijn Hesselink (Amsterdam) (Chairman), Christian Joerges (Florence), Brigitta Lurger (Graz), Ugo Mattei (Torino), Marisa Meli (Catania), Jacobien Rutgers (Amsterdam), Christoph Schmidt (Florence), Jane Smith (Bremen), Ruth Sefton-Green (Paris), Horatia Muir Watt (Paris), Thomas Wilhelmsson (Helsinki).     

Mistake of Law and Culpability

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law.     

Ignorance of the Criminal Law,and Duties to Avoid it

‘Ignorance of the law is no defence,’ so we are told from an early stage in our legal studies. Or, to be more accurate, ‘ignorance of the criminal law is no defence to a criminal charge.’ That appears to be the rule in this country, apart from a couple of well‐established exceptions and another possible one. I will argue that it is a preposterous doctrine, resting on insecure foundations within the criminal law and on questionable propositions about the political obligations of individuals and of the State. In developing these arguments, I will draw attention to the differing problems of ignorance of the criminal law in three broad areas – regulatory offences, serious crime, and offences of omission – with a view to suggesting that there is a great deal more that the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately and fairly. I begin by scrutinising the relevant rule of English criminal law and the justifications offered for it. I then go on to situate the ‘ignorance‐of‐law’ doctrine in the context of the principle of legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores the three broad areas of the criminal law, and parts four and five carry the debate into the political obligations of individuals and of the State in these matters.     

Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction

This article makes six points. First, under any plausible normative perspective, the distinction between mistake (and ignorance) of criminal law and mistake of fact must at least sometimes be drawn. Second, the fundamental distinction is between a mistake about the state’s authoritative statement of what is prohibited (“M Law”), and a mistake about whether that prohibitory norm is instantiated in a particular case (“M Fact”). Third, when an actor makes a mistake about an evaluative criterion whose content the fact-finder has discretion to elaborate, it is impossible both to allow this discretion and to faithfully realize a jurisdiction’s policy of treating M Fact and M Law differently. Fourth, the claim that every unreasonable M Fact is really a M Law elides important differences between the two kinds of mistake. Fifth, various borderline objections, such as the famous Mr. Fact/Mr. Law example, do not undermine the fundamental distinction, although in rare instances, they do constitute genuine counterexamples that do not effectuate the principles and policies that the distinction ordinarily serves; and even here, they are exceptions that prove (the rationale for) the rule. Sixth, specification or evolution of a criminal law norm, such as the criterion for nonconsent in rape law, can convert a legally relevant M Fact into a legally irrelevant M Law. This phenomenon does not undermine the fundamental distinction between these types of mistake; to the contrary, it reveals the significance of that distinction.     

Tax Fraud and Selective Law Enforcement

This article presents a new conceptual framework for research into tax fraud and law enforcement. Informed by research approaches from across tax law, public economics, criminology, criminal justice, economics of crime, and regulatory theory, it assesses the effectiveness, and the legitimacy, of current approaches to combating tax fraud, bringing new dimensions to previously identified trends in crime control. It argues that, whilst the last decade has witnessed a significant intensification of measures that purportedly target tax fraud, preference has been consistently given to enforcement measures that maximize revenue gains rather than combat the fraud itself, even where the effect is to aggravate the non-revenue costs of tax fraud. These developments demonstrate a significant shift from tax fraud suppression to tax fraud management. The article concludes that this shift not only undermines tax equity and overall tax compliance, but also leads to selective tax enforcement, thus representing a significant risk to the rule of law.     

德国及欧盟反垄断法中的商标许可合同

TRIPs协议原则上规定了应对知识产权许可合同中阻碍技术转让的滥用知识产权限制竞争行为进行控制,而且还列举了知识产权许可合同中几种典型的滥用知识产权的限制竞争行为,如:独占性回授、不争条款及强制搭售.但对于其他滥用知识产权限制竞争行为,以及不同许可合同中滥用知识产权限制竞争行为是否应采取不同的措施,却留给了成员国内法自行解释,并没有明确做出强制性统一规定.     

法国消费欺诈行为的法律规制及借鉴

法国《消费法典》未规定消费欺诈,而是采用了“商业欺诈行为”的概念,包括作为的商业欺诈行为与疏忽的商业欺诈行为,前者有混淆风险、欺诈陈述、不指明行为实施者三类假定,后者涉及违反实质信息提供义务.商业欺诈行为的主要处罚包括罚款、罚金与监禁,附加处罚包括公告判决、发布更正通告、停止违法行为,缔约方可主张合同无效和损害赔偿,严重情形构成诈骗罪.建议我国系统地设定消费欺诈行为规则,明确不作为构成消费欺诈的条件,强制责任主体自行公告消费欺诈行为等.     

论道路交通安全法上的地方事权

为了有效提升地方对道路交通的治理能力,应当在未来的《道路交通安全法》修改中认真梳理地方事权,并通过明确授权方式,允许地方性法规有更大的自决创制空间。这种可控的适度分权模式,比较契合我国立法上实行的集权下的分权模式。     

单位合同诈骗罪若干问题研究

单位合同诈骗罪应具备的两个基本条件 :一是合同诈骗犯罪意志的单位性 ;二是利益归属的单位性。以此为基准 ,再结合司法解释 ,就可以对实践中容易混淆犯罪主体的情形包括单位的分支机构或者内设机构实施合同诈骗的情形作出准确认定。以所有制形式为基准区分单位犯罪与个人犯罪的方法存在着无法弥补的缺陷 ,个人独资企业、个人合伙企业同样可以成为合同诈骗罪的主体。