有利的法——实质正义的极端化

我国《涉外民事关系法律适用法》在部分涉外关系的法律适用方面要求选择"有利于保护"某一方当事人的实体法。这种规定虽然有体现冲突法实质正义追求的积极意义,但也为法院查明和准确适用外国法增加了难度,不利于司法任务的简单化。所谓"有利的法",要求法院在众多可适用的法中,通过比较选择一个能最好保护一方当事人利益的实体法,这其实是美国"最好的法"选法方法的翻版。冲突法实质正义的趋向应当是有限度的,不应取代实体法所应发挥的作用,否则会破坏法律选择的稳定性和可预见性,丧失冲突法的规范价值和存在意义。鉴于该法生效时间不长,一时难以修改,可以考虑通过司法解释对之予以适当矫正。     

The future of technological law: The machine state

Advances in technology will challenge and change the current manner in which legal regulation occurs. It has always been possible to describe governance and law as a form of technology in itself, but the growth of digital technologies provides a new means by which to regulate the population. This article posits the theory that the inherent characteristics of technology will become inherent within the digitisation of law. As law becomes an increasingly digital entity, it will become more concerned with perfect reproduction of law upon the person, and so more encompassing in its scope. In addition, the increasing use of digital technologies in augmented reality, in 3D and 4D printing both in solid and biological matter, poses a fundamental change in the regulatory relationship between the State and the individual – a challenge the State will need to address.     

The right to be forgotten: The Israeli version

The right to be forgotten and erase, originally introduced in the well-known case of Google Spain, has caused considerable legal debates on both theoretical and procedural issues. The Israeli Supreme Court has also just recently considered the issue when it was asked to enforce the right to be forgotten of an Israeli advocate, Jonathan Miller, and delist harmful information which appeared in a Google search, and was in truth related to a different adv. Jonathan Miller. The plaintiff relied on the Israeli Prohibition of Defamation Law. Liability was denied on the basis that the information was indeed true, and thus- justified. We suggest in this article that the court should have imposed liability in negligence, an open ended general tort that mainly applies when particular torts fail to supply a reasonable and just solution in new factual situations due to change in social, economic and technological circumstances.