对网络侵权案件的司法管辖权

网络空问的存在及其全球性、管理非中心化的特点,使国际私法中司法管辖权发生动摇,为此,各国都在进行探索,但做法不一,由此在司法实践中引起了一定的混乱.为了探寻新的管辖模式,学者们提出了管辖权相对论、网址来源国法规则、国际礼让原则、最低限度联系原则等不同的观点.针对这种情况,笔者提出了解决网络管辖权争议的几点设想,即充分考虑网站的互动性、限制网络以外的促销或广告、慎选交易对手所居住的地区、尽量利用契约加以约定,注意广告的内容与免责声明等.     

Putting fault back into products liability: A modest reconstruction of tort theory

This paper postulates that the proper function of tort law is to provide protection from, and redress of, non-consensual invasions of individual rights of person and property. It then proceeds to analyze and criticize, in that context, several theories of the law of unintentional torts including traditional English negligence law and the models of Posner, Fletcher and Epstein. That analysis proceeds in terms of the answers of each theory to a uniform set of questions which must be answered by any theory of the law of unintentional harms. The paper concludes that none of the theories examined is rights-based or, indeed, consistent with the existence of individual rights of person and property.The paper goes on to elucidate a theory of liability which is rights-based. That theory turns out to be variant of traditional English negligence law in which reasonable foreseeability of harm to legally recognized rights or interests is the sole criterion of liability, the burden of precautions on the agent of the harm being explicitly excluded from consideration.Finally, the rights-based theory is applied to the area of products liability. It is demonstrated that this area of the law of unintentional harm does have the same moral foundations as the general law of negligence so that resort to the anomalous, and amoral, constructs of fictitious warranties, strict liability, enterprise liability and the deep pocket is neither appropriate nor necessary.     

Damages for pain and suffering in tort law

Legislation enacted between 2002 and 2005 by each Australian State and Territory reformed and partially codified the common law of personal injuries. This column examines the nature and history of damages for pain and suffering and analyses the approach taken by different Australian jurisdictions to compensation for non-economic loss. Non-economic loss is generally composed of pain and suffering, loss of amenities of life, and loss of enjoyment of life (some jurisdictions, eg New South Wales, also include disfigurement, and loss of expectation of life). Several jurisdictions have imposed thresholds that a claimant must meet as a prerequisite to suing for damages at common law.     

医疗纠纷民事案件处理的发展——从“事故论”向“侵权论”的转变

在我国现代历史上。“医疗事故”这一词汇经历了从新闻语言向卫生管理语言、卫生立法语言以及民事、刑事立法语言演变的过程。由于国情和社会制度的特点．卫生行政部门长时间强势主导“医疗事故”事件的处理．也使“医疗事故”概念深深地植入于我国法官的思维之中．对法院民事审判理念产生了深刻地影响作用。因我国医学界、法学界和审判实务界等对于医疗纠纷的法律处理制度和观点分歧之大，超越了其他各国和我国台湾、香港地区的法学认识．以致形成了独特的医学法律观点——即“事故论”和“侵权论”。近年来随着民事法律思想的深入研究以及对侵权法律概念的进一步认识．具有浓厚卫生行政色彩的“医疗事故”概念逐渐退出民事审判的舞台．侵权思想已经逐步回归，充分体现了我国民事法律和民事审判的进步。     

Causality and causation in tort law

This paper considers alternative approaches to dealing with causal uncertainty in strict liability tort regimes. Beginning from the philosophical literature on causing, a distinction is made between the scientific idea of causality and the legal idea of causation. This distinction is generalized to a context of causal uncertainty and associated probabilities are constructed. It is shown that a rule of proportional liability whereby the tortfeasor pays damages in proportion to the probability in causation of them having caused the damage would be socially efficient. This contrasts with the implied use of the probability in causality by the courts and in the law and economics literature on causal uncertainty.     

The search for the Russian Mafia

After the fall of communism in the Soviet Union, newspapers, films, academic researchers and intelligence agencies warned against a new phenomenon in organized crime: the “Russian mafiya.” In fact, since the fall of the Berlin Wall, Western European countries have noted an increase in the number of criminals from Central and Eastern Europe. In the mid-1990s, the Dutch judicial authorities made the issue a priority and established a special team to investigate crime with links to Eastern Europe. From 1999 to 2005, the KT NON crime team published several studies and reports on serious crime of this nature. In this paper, the authors, who were assigned to the KT NON crime team, discuss the findings of the two most recent publications on the “causes, nature, scale and threat of Central and Eastern European crime” and “mobile banditry,” respectively. They come to the conclusion that among other forms of crime, the phenomenon of mobile banditry seems to be the most serious manifestation of crime from post-communist countries. The Russian mafia was not found.

现代医疗侵权责任归责原则的确立根据

明确医疗侵权归责原则的确立根据是现代医疗侵权责任归责原则中的一项重大理论问题，只有充分把握现代医疗侵权法的归责脉络：即从安全性与罚责性并重的过错责任到呼唤公共利益回归的严格责任，才能从根本上得出医疗侵权归责原则的客观属性．从而为医疗侵权救济的最终实现提供现实可能。     

Economic analysis of the legal standard for deceit in English tort law

Scholars of law and economics have produced a huge amount of literature on how to design an optimal legal standard in tort law to regulate international torts. However, there are few works to use these theories in the analysis of tort law in an individual jurisdiction. In this paper, I apply a law-and-economics analytical framework to the study of the legal standards for deceit in English tort law with an aim to show that the law-and-economics approach could generate new insights valuable to broad our understanding of the law of deceit.

Informational externalities and settlements in mass tort litigations

This paper elaborates on a basic model of mass tort litigation, highlighting the existence of positive informational externalities afforded by the discovery process (as a general technology of production of evidences) in order to study when a class action is formed, or when a sequence of individual trials is more likely. We illustrate the argument that when several plaintiffs file individually a lawsuit against the same tortfeasor, the resolution of the various cases through repeated trials produces positive informational externalities. When class actions are forbidden, these externalities only benefit to the later plaintiffs (through precedents, jurisprudence...). When they are allowed, the first filer may have an incentive to initiate a class action as far as it enables him to benefit from these externalities, through the sharing of information with later filers. We provide sufficient conditions under which a class action is formed, assuming a perfect discovery process. We also show that when contingent fees are used to reward attorneys’ services, plaintiffs become neutral to the arrival of new information on their case.