前南国际刑事法庭的创立及管辖原则

前南斯拉夫国际刑事法庭是联合国安理会针对前南斯拉夫武装冲突中严重违反国际人道主义法的行为而设立的国际特设法庭 ,该法庭不仅传承了纽伦堡和远东军事法庭的原则及审判精髓 ,而且在很大程度上延展了国际刑事审判的原则与理论 ,并未以后的国际刑事审判以及常设国际刑事审判机构的建构提供了可行性的先导模式     

细化缓刑适用条件的若干思考——《刑法修正案（八）》对缓刑适用条件的修改及其展开

《刑法修正案（八）》对缓刑适用条件作了一定程度的细化，但还存在一些问题，包括没有对缓刑的裁量适用条件进行类型化、缓刑的强制适用条件过于绝对化、缓刑的禁止适用条件范围太小、没有规定适用缓刑的程序条件等。因此，刑法应对缓刑适用条件作进一步细化，以类型化的方式补充缓刑的裁量适用条件，完善缓刑的强制适用条件的规定方式，扩大缓刑的禁止适用条件的范围，增设缓刑适用的程序条件。     

中国市民社会研究的新进展——《国家与市民社会》(增订版)评介

《国家与市民社会》(增订版)为我们提供了认识和理解市民社会理论的清晰脉络:不但提供了市民社会作为一种需要不断反思的理论模型的面向,同时也提供了市民社会作为一种需要建构的社会实体的面向,或者说,不管是在理论方面还是在经验方面,该书都向读者提供了有关市民社会的令人印象深刻的视野范围,从而为读者较为完整地把握这一理论指明了方向。     

Comments on Doug Husak: The Low Cost of Recognizing (and of Ignoring) the Limited Relevance of Intentions to Permissibility

Doug Husak frames a worry that makes sense in the abstract, but in reality, there is not much to worry about. The thesis that intentions are irrelevant to permissibility (IIP) is a straw man. There are reasons to think that the moral significance of intentions is not properly registered in criminal law. But the moral basis for criticism is not nearly as extreme as the IIP, and the fixes are not that hard to make. Lastly, if they are not made, some people may not get the punishments they deserve, and there will be some extra inequities in the criminal law as a result. But these inequities are not so great that change must be made now. The moral categories that are used may be too crude, but they are also familiar and easy to work with, and that counts for something.

The Council for the Administration of Criminal Justice and Protection of Juveniles

The Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming) is an independent advisory, supervisory and judiciary board to the Netherlands Minister of Justice on matters relating to the prison system, the hospital order detention system, the probation system and the youth incarceration system. Members are recruited from a variety of backgrounds, such as magistracy, science, medicine, psychiatry and social work. As a rule, they have a full-time job in society. They are recruited by virtue of their expertise, competence and professional experience in relevant fields. Nowadays, there are about 60 members. The combination of the Council’s three tasks has been criticised. The argument is that the advisory and supervisory tasks of the Council could interfere with the independent and impartial nature of its judicial task. The supposed incompatibility of the three tasks has been one of the arguments of the Minister of Justice in defending his decision to set up an Inspectorate for the whole field of the administration of justice. This Inspectorate would overlap the Council’s supervisory task. So, legislation has been prepared in order to prevent overlap by taking away this task from the Council. The resistance to these plans was an important reason for the Dutch government to ask the Verwey-Jonker Institute to evaluate the performance of the Council. The Council performed very well in this evaluation. Its performance could not, therefore, really be used as an argument for curtailing its tasks. The independent nature of an Inspection Board is open to question, as it is functioning under the responsibility of the Minister of Justice. However, the Minister of Justice has not been convinced by this and other arguments, so there is a big chance that the Council will loose its supervisory task.

Opinion 1/15 of the Grand Chamber dated 26 July 2017 about the agreement on Passenger Name Record data between the EU and Canada

On 26 July 2017, the Grand Chamber of the European Court of Justice rendered its seminal Opinion 1/15 about the agreement on Passenger Name Record data between the EU and Canada. The Grand Chamber considered that the decision of the Council about the conclusion, on behalf of the Union, of the agreement between the EU and Canada about the transfer and processing of PNR data must be based jointly on Article 16(2) about the protection of personal data and Article 87(2)(a) about police co-operation among member states in criminal matters, but not on Article 82(1)(d) about judicial co-operation in criminal matters in the EU of the Treaty on the Functioning of the EU. The Grand Chamber also considered that the agreement is incompatible with Article 7 on the right to respect for private life, Article 8 on the right to the protection of personal data, Article 21 on non-discrimination and Article 52(1) on the principle of proportionality of the Charter of Fundamental Rights of the EU since it does not preclude the transfer, use and retention of sensitive data. In addition to the requirement to exclude such data, the Grand Chamber listed seven requirements that the agreement must include, specify, limit or guarantee to be compatible with the Charter.The opinion of the Grand Chamber has far-reaching implications for the agreement on PNR data between the EU and Canada. It has also far-reaching implications for international agreements on PNR data between the EU and other third states. Last, it has far-reaching implications for Directive 681 of 27 April 2016 on PNR data.     

Legislative genesis and judicial death of a directive: The European Court of Justice invalidated the data retention directive (2006/24/EC) thereby creating a sustained period of legal uncertainty about the validity of national laws which enacted it

The Grand Chamber has ruled that the data retention directive was invalid ex tunc since it seriously interfered with the fundamental rights to respect for private life and protection of personal data and exceeded the limits of the principle of proportionality which are provided for in the Charter. The scope and temporal effects of this ruling should be clarified, especially its legal impacts on national laws of Member States which enacted the directive. In addition, the findings of the Grand Chamber on geographical safeguards have far-reaching implications on the retention and storage of personal data in the EU.     

‘Supportive Parenting’, Responsibility and Regulation: The Welfare Assessment under the Reformed Human Fertilisation and Embryology Act (1990)

Section 13(5) of the Human Fertilisation and Embryology Act 1990 requires fertility clinics, before offering regulated treatment services, to take account of the welfare of any child who may be born as a result of the treatment and any other child affected by that birth. This paper presents the findings of an empirical study examining the impact on practice of the controversial reform of this section in 2008. While the broad values underpinning section 13(5) appear well embedded in clinic staff's engagement with ethical issues, there is little evidence that practice has been influenced by the 2008 amendments. A complex picture emerged regarding the implementation of section 13(5), particularly in its interaction with other factors, such as funding criteria and professional norms around counselling, implying a higher level of ongoing attention to likely parenting ability – particularly that of single women – than might be expected from a reading of the statute and guidance alone.     

Conditions not to Dispute Wills and the Inheritance (Provisions for Family and Dependants) Act 1975

In this article, the author reviews the recent decision of the HighCourt in In the Estate of Nathan Deceased [2002] N.P.C. 79, TheTimes 6/4/02, relating to the validity and effect off conditionsnot to dispute wills (i.e., gifts by will on condition that thebeneficiary does not seek to challenge the will) and how such conditionsaffect claims made under the Inheritance (Provision for Family andDependants) Act 1975. The decision in this case reveals a considerabletension between the principle of testamentary freedom and the aims andoperation of public policy in this area of the law. In the article, theauthor maps out the changes which will have to be made in statements ofthe law in leading text-books relating to conditions not to disputewills and further argues that certain dicta in the case suggest that theHigh Court has now gone too far in preferring testamentary freedom overpublic policy, opening a door which may yet permit the triumph ofconstructive fraud in some cases.     

The European Trips-Plus Model and The Arab World: From Co-Operation to Association— A New Era in the Global IPRS Regime?

The advocation of stronger and higher levels of Intellectual Property Rights (IPRs) protection has been on the rise in recent years, particularly since the establishment of the World Trade Organisation (WTO) in 1995. Although its establishment signalled the beginning of a new phase in the protection of IPRs internationally, no more than a decade later, it is seen that such a regime is still undergoing a number of significant changes. In this regard, the rise of bilateralism and the retreat of multilateralism resulted in the so-called ‹TRIPS-Plus’ recipe in which developing countries are increasingly giving way to the demands of the industrialised countries through incorporating higher levels of IPRs protection domestically. Although the USA has often been viewed as the primary advocator and enforcer of the TRIPS-Plus recipe globally, this article shows that in fact the European Union (EU) advocated the TRIPS-Plus recipe long before the USA. Thus, this article discusses the case of the European TRIPS-Plus model with the Arab World as a clear demonstration of such a trend. Developing and Arab countries are now faced with two determined superpowers acting at both the unilateral and bilateral levels to achieve their desired higher standards of IPRs protection worldwide. This will further erode the flexibilities of the TRIPS Agreement, and will entail grave repercussions for both the developing and Arab countries. LLM, PhD, Lecturer in Law, University of Central Lancashire (UCLAN), UK. The author may be contacted at mel-said@uclan.ac.uk