Standardisation: A tool for addressing market failure within the software industry

Despite the maturity of the software industry, empirical research demonstrates that average software quality, when measured through the presence of software defects, is low. Such defects cause a wide array of issues, not least in the form of vulnerabilities, which support a multi-billion pound a year industry of fraud in cyber crime. This paper suggests that this is the result of market failure stemming from two factors: the first is that information asymmetry prevents the establishment of software quality prior to purchase; whilst the second is that the legal provisions available under private law are unable in their current form to adequately address software liability issues. On that basis this paper proposes the use of standardisation as a tool to address both of these shortcomings by providing an industry benchmark against which software quality can be ascertained, as well as forming a legal tool for determining causation for the purposes of establishing legal liability.     

《环境污染强制责任保险管理办法(草案)》除外责任之探讨

除外责任具体内容的设计应考虑公益和私益的平衡,确保其在及时、有效分散与移转风险,削减社会管理成本的同时兼顾承保人、投保人、受害人三方的私益.《环境污染强制责任保险管理办法(草案)》中将"不可抗拒的自然灾害""环境污染犯罪"的除外责任限定于"致使第三者遭受的损害"不妥,保险公司不应为生态环境损害承担保险责任;将"环境污染...     

试论我国未来民法典中的民事责任制度的体例

传统大陆法系的立法体例是将民事责任规定在债法中,责任与债融为一体,在民法典中并没有单独规定民事责任专章。有的学者认为,民事责任的含义可以分两方面来理解,第一种含义是指某人对他人的权利或者利益不法地加以侵害时,应该受到的民法上的制裁,而这种责任是债务成立的原因;第二种意义是指债务人就其债务而应以其财产为之所承担的担保,这种民事责任是债务成立之后的结果。在很多国家的民事立法中,以有债务即由此种民事责任为原则,所以由此产生的结果就是债务与责任两者经常被混为一谈。然而现代民法将民事责任与债相分离已经是一种不可阻挡的趋势。我国《民法通则》一个显著的特点就是单独就民事责任设立了一章,从而突破了传统大陆法系将民事责任纳入执法的立法体例,可以说,这一设定是我国民事立法的一大特色。本文通过阐述《民法通则》民事责任制度的优点和不足,对之加以扬弃,从而为民法典中民事责任制度的构建提出一点看法。     

The law and economics of AI liability

The employment of AI systems presents challenges for liability rules. This paper identifies these challenges and evaluates how liability rules should be adapted in response. The paper discusses the gaps in liability that arise when AI systems are unpredictable or act (semi)-autonomously. It considers the problems in proving fault and causality when errors in AI systems are difficult to foresee for producers, and monitoring duties of users are difficult to define. From an economic perspective, the paper considers what liability rules would minimise costs of harm related to AI. Based on the analysis of risks and optimal liability rules, the paper evaluates the recently published EU proposals for a Product Liability Directive and for an AI Liability Directive.     

论“不合理的伤害危险”——对过失概念客观要素的考察

过失概念在理论上可以区分出两项要素，即客观上存在着不合理的伤害危险，主观上该危险存在着可预见性，但两项要素并非泾渭分明。不仅理性相对人不能认识和防范的危险可以构成不合理危险，在一定条件下，非理性相对人不能认识和防范的危险同样可以构成不合理危险。“不合理危险”这一要素在内涵和外延上的不确定性，导致了过错责任与危险责任的界限模糊。不同的情况对本人提出的认识要求是不同的。对于理性相对人不能防范的危险，要求本人更认真地去认识，非理性相对人不能防范的危险，则不是如此，但不等于不要求本人去认识。     

Proof of causation in informed consent cases: establishing what the plaintiff would have done

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff's ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff's prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court's reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.     

Environmental Liabilities of Property Owners: Examples of Common Risks and Strategies to Anticipate and Avoid Them

Property owners are subject to potential environmental liability from a number of sources including strict statutory liability for remediation of contamination on their properties as well as liability for conditions within their buildings. These latent environmental risks are often exposed in the context of a transaction, redevelopment, or change of use. Commonly used due diligence protocols can avoid or mitigate many risks but owners need to be aware of the limitations and pitfalls of due diligence. In many circumstances, environmental insurance should also be considered as part of the overall environmental risk management strategy.     

Rethinking Product Liability: A Missing Element in the European Commission's Third Review of the European Product Liability Directive

The paper uses the opportunity afforded by the European Commission's Third Report of the Product Liability Directive to assess the present state of product liability in Europe. It notes that despite the maximal harmonisation character of the Directive there is a risk of divergence between Member States on key issues including the core concept of defectiveness. The Commission seems at times confused (for example, as regards the relationship between defect and fault liability) and more often complacent about the risks of divergence; but this sits uneasily with the espousal of maximal harmonisation. Ultimately there may be a need for a rethinking of product liability to ensure greater clarity as regards the underlying rationale supporting strict liability. This seems unlikely to materialise in the near future and so at the very least the Commission should act to clarify some core concepts that are proving difficult to interpret for the courts.     

论网络服务提供者的著作权侵权责任

网络服务提供者在网络信息交流中处于中立第三方地位。在网络用户利用网络服务实施侵害著作权行为的情况下,网络服务提供者作为共同侵权行为的帮助人,承担间接责任。这是一种过错责任,即在网络服务提供者具备"明知"(实际知道)和"应知"(推定知道)的主观要件时所承担的侵权责任;同时,它亦为一种不真正连带责任,事实上由网络服务提供者承担最终责任。     

Considerations on the economic effect of the new Turkish commercial code provisions regarding single member companies

This article deals with both legal and economic analysis of the new Turkish Commercial Code provisions regarding single member companies. In this respect, legal provisions of the Turkish Commercial Code are examined and compared not only with the Twelfth European Union Directive and Societas Unius Personae, but also regulations of the European Union member states. Since single member companies are to be established as limited liability companies under Turkish law, this article considers the benefits of the limited liability form that can be applied to single member companies in the framework of firm theory. It also examines the benefits and risks of single member companies in terms of transaction costs and assesses the safeguards against the risks in this regard. Finally, an evaluation is made in the light of the data collected relating to the number of companies established after the new Turkish Commercial Code entered into force.     

医疗责任保险的思考

大力发展医疗责任保险,对医疗执业过失给患者造成的损害进行充分赔偿,在保障患者和医疗机构及其医务人员的合法权益,优化医疗环境和医疗公共秩序方面有重要的促进作用。由于我国医院主体是公立医院,侵权法人身损害赔偿相对于综合医院尚未到重大程度,并且综合性医院每年发生的医疗过失案件基本确定,选择满足面临危险的医院财务安全需要的医疗责任保险模式,如医疗责任保险信托等,才能促进医疗责任保险的发展。实践表明,商业性医疗责任保险不宜成为我国医疗责任保险的主体。建立独立的医疗过失纠纷调解鉴定机构,才能保证医疗责任保险顺利开展。     

Search engines and Internet defamation: Of publication and legal responsibility

When the Internet user keys a search term and clicks “enter”, a series of snippets, images and html links will appear typically running into several web pages. In the case of Autocomplete suggestions, the result appearing on the bar changes with each keystroke even before the user clicks “enter”. As a result, in the course of finding search results from the original search term, the user is constantly provided with suggestions of other search terms. The search results and Autocomplete suggestions may be defamatory of individuals and businesses by associating them with dishonest and improper activities or conduct. Should search engines be regarded as a publisher of such defamatory search results and/or Autocomplete suggestions? What is the appropriate legal approach for establishing search engine responsibility in such instances? The paper considers the above questions by reference to case precedents drawn primarily from common law jurisdictions and commentaries on the liability of search engines and other Internet intermediaries as well as policy rationales and considerations.     

Unmanned aerial vehicles: A preliminary analysis of forensic challenges

As unmanned aerial vehicles have become more affordable, their popularity with the general public and commercial organisations has seen significant growth in recent years. Whilst remaining a device for both the hobbyist and aircraft-enthusiast to enjoy, they are now also used for carrying out activities such as law enforcement surveillance, agricultural maintenance, acquiring specialist movie and sports event footage along with search and seizure activities. Conversely, despite maintaining many legitimate uses, there are also increasing media reports of unmanned aerial vehicle technology being abused, ranging from physical assaults due to negligent flights to breaches of Civil Aviation Authority Air Navigation Regulations, requiring a forensic analysis of these devices in order to establish the chain of events. This article presents an introductory discussion of unmanned aerial vehicle analysis and provides the results of a digital forensic investigation of a test Parrot Bebop unmanned aerial vehicle. Directions for the acquisition and analysis of the device's internal storage are provided along with an interpretation of on-board flight data, captured media and operating system. Further, as the device can be controlled via Android and iOS devices using the application FreeFlight3, forensic analysis of these devices is also presented. Results showed the ability to recover flight data from both the unmanned aerial vehicle and controller handsets along with captured media, however problems exist with establishing the definitive owner of the device, particularly if a user had abandoned it at the scene of a crime.     

刍议物证与物证特征的系统分类

为了全面认识所有反映＂人＂的信息物证和所有反映＂物＂的信息物证,从反映物证系统的核心的内在规律入手,依据物证反映信息的本质对物证进行了分类,并依据现代系统科学中的＂中观方法论＂原则,对物证特征进行了系统分类。以期有利于检验鉴定人员对物证特征系统多方面、深层次进行认识,提取更多的信息,提升案件的检出率和准确率,同时也为建立系统检验鉴定量化模型,提供更加科学、精确的评判依据。     

论政府环境责任的缺陷与健全

政府环境责任的缺陷和不足,是环境保护领域政府失灵、环境法律失灵的一个重要原因。我国政府环境责任的缺陷主要体现在"重政府经济责任,轻政府环境责任"、"重企业环境义务和追究企业环境责任,轻政府环境义务和追究政府环境责任"、"重政府环境权力,轻政府环境义务"等八个方面。通过阐明健全政府环境责任的法理基础、指导思想和原则,提出建立健全政府环境责任的体系和制度的建议。     

医疗执业风险行业内分担机制的初步探讨

为有效规避和转移医疗执业风险、解除医疗机构和医务人员的后顾之忧,本文对设立与完善医疗执业风险行业内分担机制的必要性和可行性进行探讨。通过深人分析本文认为,通过整合社会各方面力量和医疗行业内的资源,建立医疗责任商业保险机制,可分担医疗执业风险,维护社会和谐与稳定。     

侵权法上的因果关系

侵权法上因果关系可分为责任成立意义上的因果关系和赔偿范围上的因果关系。责任成立意义上的因果关系无论在大陆法系还是英美法系都可分为事实因果关系和法律因果关系。事实因果关系的判定以哲学意义上的因果关系的判定为基础 ,以必要条件或充分原因作为前提条件 ,同时必须伴随损害结果发生可能性增加。法律因果关系的成立则以实现其社会功能为出发点 ,因此要将可预见性、损害的类型、责任的类型、过错的程度等加以考虑。赔偿范围上的因果关系是确定各原因力对损害结果的贡献 ,从而锁定赔偿额的大小。     

Neighborhood Effects and Compensation for Property Value Diminution

This paper analyzes the legal issues surrounding defendants' liability for property value diminution caused by stigma from environmental contamination. The courts, law review articles, and public policy analyses are in disagreement over how to handle stigma damages. This paper argues that a reasonable risk of contamination is not required for a nuisance claim if community effects, which were caused by the contamination, are present. The authors then turn to issues regarding the level of damages and propose a methodology for measuring compensation that is based on a guaranteed sales price. This methodology is applied to the RSR smelter in Dallas, Texas.     

Electronic personhood for artificial intelligence in the workplace

There are several legal and ethical problems associated with the far-reaching integration of man with Artificial Intelligence (AI) within the framework of algorithmic management. One of these problems is the question of the legal subjectivity of the parties to a contractual obligation within the framework of crowdworking, which includes the service provider, the Internet platform with AI, and the applicant's client. Crowdworking is an excellent example of a laboratory of interdependence and collaboration between humans and artificial intelligence as part of the algorithmic management process. Referring to the example of crowdworking platforms, we should ask whether, in the face of the rapid development of AI and algorithmic management, AI can be an employer equipped with electronic personhood? What characteristics does a work environment in which AI and algorithmic governance mechanisms play a dominant role? What kind of ethical implications are associated with the practical application of the concept of electronic subjectivity of AI in employment relations? This paper analyses the legal and ethical implications of electronic AI subjectivity in the work environment. The legal construction of electronic personhood is examined. The legal entity that uses AI, which manages the work process through algorithmic subordination, bears the risks resulting from such use (economic, personal, technical, and social) and full material responsibility (individual liability regime with the application of the presumption of guilt rule) in case of damage to an employee. Liability provisions can be complemented by a mandatory insurance scheme for AI users and a compensation fund that can offer support when none of the insurance policies covers the risk. A compensation fund can be paid for by the manufacturer, owner, user, or trainer of the AI and can compensate all those who suffer damage as a result of its operations. This is the direction proposed by the European Parliament, which has progressively called for robots to be given an electronic personality. The personalistic concept of work excludes the possibility of AI becoming a legal entity. Alongside legal arguments, ethical questions are of fundamental importance. The final part of the article presents the ethical implications of AI as an employer endowed with a legal entity (electronic personhood).