Economic Consequences of Transfer Fee Regulations in European Football

We discuss the effects of three different transfer fee systems in European football on contract lengths, wages, profits, education incentives and the number of talents being educated. The different regimes, being used until the Bosman judgement of 1995, currently in use, and recently proposed by the European Commission differ with respect to the transfer fee an initial club must accept in case of a transfer depending on whether a player has a valid contract or not. In particular, we argue that due to its averse effects on investment incentives, the Commission should refrain from its Suggestion of abolishing freely negotiable transfer fees. Our analysis also sheds some light on the issue under which circumstances binding long-term contracts should be allowed in general labor law.     

医疗服务合同的问题分析及对策

以合同的方式处理医疗纠纷存在不少理论障碍 ,本文从医疗服务的特殊性入手 ,分析了现行合同法难以规制医疗服务行为的原因 ,提出了建立和公示诊疗规范制度、设立基本救治基金、完善多层次的医疗保险制度 ,从而明确医、患双方的权利、义务 ,以实现合同法对医疗行为的规范。     

Verifiability, Incomplete Contracts and Dispute Resolution

Recent literature on incomplete contracts attributes noncontractibility of certain contingencies to their unverifiability. This paper questions the underlying assumption of this theory and argues that the court (or arbitrator) need not observe relevant contingencies with the same degree of accuracy as the contracting parties in order to enforce a contingent contract. In a simple procurement model, it is shown that as long as the ruling of the court (arbitrator) is not arbitrary, the first-best outcome can be implemented under certain ideal conditions by a contingent contract even if contingencies are costly to verify and verification is imperfect.     

契约精神与宪政

契约精神是现代市场经济在观念形态上的集中表现,是市民社会新的政治理念的浓缩与集中表现。宪政是指国家依据一部充分体现现代政治文明的宪法进行治理,以实现一系列民主原则与制度为主要内容,以厉行法治为基本保证,以充分实现最广泛的人权为目的的一种政治制度。契约精神,与宪政具有内在的逻辑关系即契约精神是宪政思想的重要来源,源于契约精神的平等、自由因子是宪政的灵魂;契约精神为宪政秩序的构建提供了具体的制度范式;契约精神与宪政彼此互动,所产生的时代新精神,不断推动着宪政制度走向完善。     

当代中国法治进程中的文化阻滞力

当代中国的法治进程正处于特殊的历史情境中,社会转型带来了前所未有的文明冲突和文化碰撞,不同的文化精神同时影响着这个寻求现代化的国家。以理性化、契约化为核心文化精神的现代法治,要在有着千百年宗法伦理文化积淀的中国社会扎下根来,需要克服来自传统之中内在的文化阻滞力,这种阻滞力通过个体的行为和社会结构表现出来,通过人们的日常生活潜移默化地渗透到政治、经济、法律等各种非日常的社会领域,阻碍了法治社会的形成。中国在寻求适合自己发展道路的过程中,越来越意识到自身文化问题的重要性。在法治发展的现阶段,要真正打破困境,必须从根本上逐渐限制和消除来自于中国社会内部的具有结构性特征的文化阻滞力,变不利为优势和特色,从而为法治建设的进一步深化创造条件。     

Membranous fat necrosis due to subcutaneous elemental mercury injections

Membranous fat necrosis (MFN) is a distinct abnormality in systemic and subcutaneous fatty tissue. Although ischemia and trauma have been implicated in its causation, the exact pathogenesis of MFN remains unknown. The deposition of metallic mercury in subcutaneous tissue due to accidental penetration or deliberate injection of mercury is unusual. Depending on the duration of the deposition, localized necrosis, suppuration, and granuloma formation have been described at mercury injection sites. We report subcutaneous MFN, a hitherto unrecognized histopathologic phenomenon at sites of mercury deposition, in a 21-year-old soccer player who had deliberate subcutaneous and intramuscular elemental mercury injections to improve his sporting performance.     

刑罚的由来及其理论基础

刑罚是掌握政权的统治阶级用以惩罚犯罪的强制方法。为了论证其产生与存在的合理性 ,刑法学者们提出了同态复仇说、契约说、社会防卫说、惩罚需要说等众多学说 ,阐述了其各自学说的基本观点和基本理论。这些学说的相继提出 ,体现其所处的时代精神 ,反映其随着人类社会的发展、进步而逐渐迈向科学性。     

The Bosman ruling and the presence of native football players in their home league: the Spanish case

This paper examines whether the Bosman ruling plays a role in the presence (participation and performance) of native football (soccer) players in their home league, focusing on the Spanish case. By abolishing transfer fees after the expiration of contracts, as well as liberalizing the migration of professional football players within the European Union, the Bosman ruling could negatively impact the participation of national players in their home league. To explore this issue, we use data from the First Division of the Spanish League for the seasons 1980/1981–2011/2012. The results suggest a decline in the number of native Spanish players as a consequence of the Bosman ruling, although the impact does not appear to be permanent. However, we find that the Bosman case has a negative and lasting impact on the performance of Spanish players in their home league. Our findings do not change when we use different subsamples or introduce controls for unobserved characteristics, or for observed characteristics that could drive the presence of Spanish players, such as participation in European competitions, the performance of the Spanish national team, and the success of teams’ youth academies, among others. This work also takes into account other changes in the nationality quota rules and the impact of other post-Bosman legislative changes, such as the Kolpak case and the Cotonou agreement.     

无权处分合同的效力、不安抗辩、解除及债务承担

判决转让他人股权合同不因欠缺处分权而无效,判决要旨将之升华为普适性的结论,司法解释予以固定,至少存在六个方面的缺点。约定解除与法定解除并存时,虽然行使约定解除权的条件尚未成就,但在法定解除的条件具备时不妨行使法定解除权。在股权出让人已将股权移转给受让人的情况下,受让人拒绝付清余款,其根本原因在于双方共同开发房地产项目的目的不能实现,这不符合不安抗辩权的成立要件。在《承诺函》明确表示出具者向债权人承担偿还责任,却未言明免除债务人的债务的场合,不宜认定为成立了免责的债务承担。     

Why football players may benefit from the ‘shadow of the transfer system’

Transfer restrictions have a long tradition in professional sports but came under heavy attack in recent years (e.g. Bosman ruling, Monti system). Based on a bargaining model with stochastic player productivity, we show that less restrictive transfer rules reallocate ex post bargaining power from players to clubs. This reallocation is efficient and in the ex ante self-interest of players. The right to charge transfer fees enables clubs to insure their players. The players, in turn, benefit by converting risky future income into riskless current income. Overall, player utility is higher under more than under less restrictive transfer rules.

CHINA’S WTO PARTICIPATION IN ANTI-DUMPING DISPUTES (2001–2011)

The anti-dumping war between the US and China has attracted much attention lately, especially after a March WTO ruling and a November US domestic court ruling on the issue in 2011. While the former held that the current US method of applying countervailing and anti-dumping duties simultaneously on imports from China and other non-market economies was “inconsistent” with the WTO rules, the latter ruled that such action was “illegal” under the US countervailing law. China has been one of the most frequent anti-dumping investigation targets by both developed and developing countries for decades. Although it currently has more than one hundred anti-dumping actions against its trading partners at the domestic level, China is a very new player of anti-dumping litigation at the WTO level. China filed its first WTO claim on anti-dumping in December 2007 against the US, since when it has made frequent appearance at the WTO dispute settlement in this regard. This Article examines China’s participation in anti-dumping disputes during the first ten years of its WTO membership, five as complainant and four as respondent. The alleged undervalued Chinese currency has been claimed to provide unfair price advantages to Chinese products and consequently tops trade frictions between China and its trading partners. It to some extent contributes to the rising anti-dumping disputes of China. With the continuing pressure to appreciate the Chinese currency globally as well as the current debit crisis in the EU, more anti-dumping and countervailing investigations against China are expected to emerge as countries are pushing more exports to assist the gloomy domestic economies. This becomes more likely taking into account the mounting claims on the job lost in the US due to the flux of cheap and competitive Chinese products.     

Bosman—There and Back Again: The Legitimacy of Playing Quotas under European Union Sports Policy

The 1995 ruling of the European Court of Justice in Bosman was a pivotal point in the relationship between the European Union and sport. It has had an immense impact upon professional team sports, most notably football, in terms of liberalising the transfer system and abolishing player quotas. This paper will chart the development of a European sports law policy generally and will specifically discuss two current proposals concerning the reintroduction of playing quotas in football. We will examine the legality of these proposals with reference to Article 45 of the Treaty on the Functioning of the European Union and will evaluate the political context within which these proposals have been promulgated. It will be suggested that a possible solution, which should end legal uncertainty, could be the adoption of a collective agreement or directive based on the methodology of reflexive labour law.     

The Construction of Terms of Facultative Reinsurance Contracts: is Wasa v Lexington the Exception or the Rule?

Do reinsurers insure the liability faced by the reinsured under its original insurance contract? Where the reinsurance and direct insurance policies are written in identical terms, is it enough for the reinsured to prove its liability under the original insurance policy in order to make a successful claim against its reinsurers? These questions are crucial, because they determine whether the terms of the reinsurance are to be construed identically to those of the direct policy even though they have different governing laws. The issues came before the House of Lords in Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHL 40 and the answers were provided in a judgment delivered on 30 July 2009, the last day of the operation of the House of Lords as a court. This note discusses the nature of facultative reinsurance contracts in the light of their Lordships' ruling.     

射幸合同立法研究

射聿合同的射幸性决定了其订立必须遵循最大诚信原则。射幸合同创设并在当事人间分配射幸性风险时,引发了一些社会问题,需要立法予以规制。判断射幸合同合法性的一般标准是：射幸合同是否严重损害当事人一方利益、他人利益或社会公共利益;某种习俗或习惯法的存在可以推定其社会危害性较轻。根据这一标准,结合不同类型的射幸合同,分别判定其合法性并赋予其不同的法律效果,是未来民法典射幸合同立法的可行选择。     

依法执政能力的科学内涵

依法执政是新时期党执政的基本方式,能否具备依法执政能力是实现依法执政的关键因素。依法执政能力包含三个层面:一是执政党依法把党的意志和行为法律化的能力直接体现,就是依法治国方略的实施;二是行政机关依法办事能力,就是要求政府部门要依法行政;三是行政机关工作人员法律思考问题和用法律手段解决问题的能力,就是要提高领导干部和公务员的法制观念和法律素质。     

从人治走向法治的转型思考

从法理上讲,治理国家是要人治还是要法治,不能以人们主观意志为转移,而应该是以人治与法治在其由来发展中对国家管理的作用,人治与法治的实质含义,并结合掌权者的意志、利益和要求,以及国家建设管理实践来思考、鉴别和选择取舍。     

新《合同法》对海上货物运输的影响

在新合同法中 ,有一些货物运输方面的法规是海商法法所没有的 ,且合同法和海商法也存在一些差异 ,这些条款必定对海上货物运输产生影响。本文分析了这些条款的差异和效力。     

民事裁定分类研究

虽然民事裁定绝大部分都是解决程序问题的,但仍有一小部分涉及实体问题,且即便是涉及程序问题的民事裁定也具有不同的特性而非一模一样。在当前制度框架内的补充和重构是完善民事裁定制度的方式和途径,通过对民事裁定的类型化考察,可以合理界定民事裁定的适用范围并加强裁判方式的规范化,以确保民事裁定充分发挥其作用。     

私法效果的弹性化机制-以不合意、错误与合同解释为例

刚性的“要件一效果”模式,易导致个案的非正义。私法效果的弹性化,可透过要件的动态化而实现。合意与否、错误与否的判断,需在信赖合理性与归责性比较权衡的基础上透过合同解释来完成。合同解释为要件的动态化提供了场域。合同解释中,通过信赖合理性和归责性要件动态化的比较权衡,可分别得出:不合意且无责任、不合意同时承担缔约过失责任、合意且有错误而可撤销、合意虽有错误但不可撤销等结论,从而实现法律效果的弹性化。     

The right to refuse treatment under Rogers v. Commissioner: preliminary empirical findings and comparisons

Preliminary findings on the effects of the Massachusetts ruling in Rogers v. Commissioner, an important right to refuse treatment case, are compared with models in other jurisdictions. In sum, few cases are reviewed; in almost all reviewed, the court overrides the patients' refusal. The case raises troubling implications about due process and quality of care.