商标异议程序立法研究——兼论我国商标异议程序的改革

商标异议程序的设置与商标注册审查的范围有着内在关联,应当统筹考量.我国商标异议程序的设置,经历了一个从"双置"到"前置"演变的过程;域外在商标异议程序的设置上,出现了从"前置"向"后置"转化的趋势.异议程序"后置"以后,就会出现异议程序与无效程序功能重合的现象,由此产生了异议程序与无效程序"合置"问题.结合我国商标审查的传统与现实,宜将异议程序与无效程序结合在一起,采用"合置"模式.     

Looking Ahead: Addressing Ethical Challenges in Public Health Practice

Ethical challenges in public health can have a significant impact on the health of communities if they impede efficiencies and best practices. Competing needs for resources and a plurality of values can challenge public health policymakers and practitioners to make fair and effective decisions for their communities. In this paper, the authors offer an analytic framework designed to assist policymakers and practitioners in managing the ethical tensions they face in daily practice. Their framework is built upon the following set of six considerations: determining population-level utility of the proposed action; demonstrating evidence of need and effectiveness of actions; establishing fairness of goals and proposed implementation strategies; ensuring accountability; and, assessing expected efficiencies and costs associated with the proposed action. Together, these considerations create a structured guide to assist decision-makers in identifying potential ethical challenges and in assessing the moral considerations that underlie public health practice - and possibly even, if the conditions are met, reduce the creation of ethical tension. Although the authors'empirical experiences provide the basis for the framework advanced here, their approach remains to be tested and evaluated by public health practitioners.     

人肉搜索立法问题研究

人肉搜索作为独特的网络现象,是一把双刃剑,在其发挥舆论监督、打击罪犯和强化社会道德压力等正面功能的同时,也存在着侵犯公民个人隐私、影响政府公信力等负面功能。因此,从立法层面加强对人肉搜索的规范管理,使其健康发展,对保护公民个人隐私权、防止网络暴力等有着积极意义。     

论地方专属立法权

确定地方的专属立法权具有一定的理论意义,而且能够发挥保护或限制地方立法权、发扬地方立法积极性的重要作用。具体确立上,应采取事务"影响范围"和"重要程度"相结合的标准,并以"地方性事务"为起点,界定"地方性事务"的可能范围。     

电信诈骗罪立法问题研究

电信诈骗犯罪的社会危害日益严重.与普通诈骗犯罪相比,电信诈骗犯罪在发生的场域、侵害的法益与构成要件上都有其特殊性,在对现行刑法规定及司法解释存在的不足进行分析的基础上,提出相应的立法完善建议.     

Individual Property Restitution: from Deng to Pinheiro - and the Challenges Ahead

The issue of housing and property restitution for refugees andinternally displaced persons (IDPs) has received considerableattention in the past decade.¹ Conflicts and wars in differentparts of the world have shown how housing and property rightsare systematically violated during armed strives. Intentionaldestruction of property, arbitrary confiscation of housing andsecondary occupation are just some of the most common practicesin violation of individual property rights. In addition to beingan individual's right, the international community has increasinglyconsidered post-conflict housing and property restitution asa key component of the broader objective of peace building,and as a means of promoting restorative justice within society.Both at operational and at normative level, several initiativeshave contributed to enforcing property restitution rights: fromthe establishment in the mid 1990s of institutions mandatedto resolve conflicting property claims to the adoption in 2005of the so-called ‘Pinheiro Principles’, the firstinternational standard exclusively addressing property restitutionrights. This paper explores the strengthening of international normsin the field of individual property restitution for refugeesand IDPs over the past decade, and argues that the currentlyavailable normative standards reflect a partial understandingof displacement and restitution. With an almost exclusive focuson individual real property restitution, and an explicit preferencefor return among solutions to displacement, such standards undervaluethe importance of alternative remedies and overlook the rightsof non-returnees. After a brief overview on the emergence ofa right to individual property restitution in internationallaw and policy (part 1), this paper will concentrate its attentionon three legal documents addressing property and displacement:the Guiding Principles on Internal Displacement of 1998, theInternational Law Association Declaration of Principles on IDPsof 2000, and the Pinheiro Principles of 2005 (part 2). The firsttwo documents confine their scope to displacement within nationalborders, whereas the Pinheiro Principles encompass restitutionrights for both IDPs and refugees and represent the most recentand comprehensive standard on the topic. Despite the remarkabledevelopments at normative level, epitomized by the approvalof the Pinheiro Principles, this paper highlights the followingproblematic areas: the role played by physical return in theconceptualisation of property restitution; the supremacy givento individual real property restitution over other types ofremedies; and the impact of the passage of time on restitutionrights (part 3). The paper concludes by arguing that restitutionmust be conceived independently from return and must consequentlygo beyond individual real property restitution, in order toprovide effective redress to refugees and displaced persons(part 4).     

农产品质量安全的立法研究

《农产品质量安全法》的颁布和实施,填补了我国调整农业初级产品法律上的空白,基本形成了"从农田到餐桌"的农产品质量安全法律体系。但目前我国的农产品质量安全立法还存在着农产品范围不明确、禁止生产区域界定不清、法律责任规范不足等诸多不足,必须针对这些问题进行深入分析,进而构建出适合我国农产品质量安全运行规律的法律体系,才能从根本上提高我国农产品质量安全水平。     

The Logic of Legislative Leadership: Preferences,Challenges, and the Speaker's Powers

Principal agent theory implies that legislators will delegate power to a leader only when they need the leader's help and the leader can be expected to provide satisfactory help if granted power. This study is the first to evaluate the implied interaction between legislators' need for help and the degree to which legislators and leaders have similar preferences. By analyzing the Speaker's powers in the U.S. states, I arrived at three key conclusions. First, institutional leadership power responds to the interaction between preference alignment and policymaking challenges. Traditionally expected effects only appear when both alignment and challenges are relatively high. Second, professionalization causes weaker leadership powers. Finally, electoral competition correlates with stronger appointment, committee, and resource powers, but weaker procedural powers.     

Legislative Effectiveness and Legislative Careers

We studied an underutilized source of data on legislative effectiveness and exploited its panel structure to uncover several interesting patterns. We found that effectiveness rises sharply with tenure, at least for the first few terms, even when we control for legislators' institutional positions, party affiliation, and other factors. Effectiveness never declines with tenure, even out to nine terms. The increase in effectiveness is not simply due to electoral attrition and selective retirement, but to learning‐by‐doing. We also found evidence that a significant amount of “positive sorting” occurs in the legislature, with highly talented legislators moving more quickly into positions of responsibility and power. Finally, effectiveness has a positive impact on incumbents' electoral success and on the probability of legislators moving to higher office. These findings have important implications for arguments about term limits, the incumbency advantage, and seniority rule.     

强奸罪立法的反思与重构

传统的强奸罪只将犯罪对象限定为女性,由于时代的不断发展,在强奸犯罪的领域出现了女性强奸等各种不同的新情况,而我国强奸罪的现行立法面对这些新情况则没有回应。本文通过对强奸罪的女性主体、男性犯罪对象、婚内强奸以及强奸罪的"自诉"化等问题进行探讨,指出:女性可以成为强奸罪的主体;强奸罪的犯罪对象也可以是男性;对未成年人应特别保护;强奸罪的一些情况可以纳入"自诉"案件的范围。     

Progress, Challenges and Suggestions on Legislative Efforts of Combating Sexual Violence against Children in the Mainland China

This article provides a brief overview of Chinese legislative progresses in combating child sexual abuse. It also examines flaws of the current legislation based on findings in legal practice and by comparing to UN conventions. While picking up the flaws, the article also gives recommendations for future reform.