Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?

Recently there has been much discussion of the prospect of replacing, or supplementing, the Human Rights Act 1998 (HRA) with a British bill of rights. The Government, opposition Conservative Party and others have published detailed plans and research reports. Whilst there has been some limited examination of the alleged failures of the HRA in providing effective legal protection for human rights, the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms. Drawing on research concerning aspects of the HRA carried out over the past ten years, it is possible to identify concrete problems which have prevented the HRA from meeting the objectives originally set for it. But given the limitations of the present debate, future plans do not adequately address many of these problems making it uncertain how effective any new bill of rights will actually be.     

Recent developments in medical law

The most spectacular aspect is the extremely rapid expansion of medical law. Even if there is a close connection between developments in medicine and in law, the question must be asked as to what extent new discoveries and advances in medicine play a dominant role here, and to what extent the emphasis is on the further development of law. How advances in medicine can give rise to new legal problems was most impressively demonstrated some time ago by the discussion about cerebral death. In view of the progress made in the field of re-animation and intensive care, the current question is whether or not the physician's duties and rights to maintain life should be limited in hopeless cases when patients are incapable of making decisions themselves. This is demonstrated in particular by the discussion about the binding character of "patient testaments" in which healthy subjects declare that they do not want treatment under such circumstances. The decisive factor will continue to be the presumptive will of the patient at the respective time, and this will have to be ascertained considering all circumstances prevailing at that time. New questions with regard to the ethical and legal limitation of the technically feasible also arise from the possibility of culturing embryos from legal abortions or extracorporally fertilized ova to obtain transplants, and from the possibility of implanting extracorporally fertilized ova into the uterus, perhaps that of a "hired childbearing wet-nurse." In addition to ethical and legal problems, questions of parentage would arise here similar to those already of current interest in connection with artificial heterologous insemination. For physicians practicing these methods, questions concerning liability and the limitation of professional secrecy vis-à-vis the semen donor might become the issue of law suits in the near future. Current problems of "unsuccessful sterilization" and nonperformance of an abortion through the physician's fault although abortion was indicated for eugenic reasons are, on the other hand, primarily due to the fact that the law--possibility even for acceptable reasons--establishes legal obligations for the physician which, in the last analysis, aim at preventing human life from coming into being.(ABSTRACT TRUNCATED AT 400 WORDS)     

Catching Cybercriminals: Policing the Internet

This article seeks to contribute to the existing debate(s) over the governance of cyberspace by focusing not upon legal frameworks, which have been already been the subject of much good work, but upon the enforcement of law. What is missing from much of the recent debate has been a substantive discussion of some of the practical problems of policing the Internet, such as by whom and how it should be (is being) policed. Such considerations are becoming increasingly important as the inhabitants of cyberspace multiply in number. It is argued that much of the debate over the policing of the Internet has tended to be driven by moral panics. As these panics subside it is becoming clear that there is clearly a confusion in the literature between the potential and actual harms that can be inflicted by cybercrimes. Consequently, we must be wary of reports which exaggerate the extent to which cybercrimes have proliferated, especially when those reports appear to originate from bodies who are currently engaged in the growing cybercrime industry. Furthermore, the legal problems appear to be less considerable as previously thought, especially with regard to the conflict of laws. This is not to say that there is not a problem, for there clearly is, but the article suggests that some of the undesirable behaviours will work themselves out, some will be eradicated by technology, whilst the remainder will continue to challenge our traditional understandings of crimes and deviant behaviours and the way that we police them. The first part of this article will look briefly at the growth of cybercrime: at what it is, who are the offenders and who are their victims. The second part will look at current models of policing the Internet and the third part will explore the appropriateness of the terrestrial policing model to the treatment of cybercrimes.     

地方政法委协调处理刑事案件的制度考察及分析

我国的刑事案件事实认定机制不具有对抗"协调"的功能。书面认定案件事实是地方政法委协调处理案件的技术方式。现行制度设置决定了案件事实认定主体具有多元化的特征。要保证我国刑事诉讼程序得以有效运行,就需要地方政法委在一定程度上发挥协调功效;同时,要实现公、检、法三机关之间的利益平衡也需要地方政法委进行协调;此外,地方政法委通过对刑事案件进行协调处理也可以实现自身的政策目标。目前,不宜取消地方政法委对刑事案件的协调制度,但应当合理限制地方政法委协调刑事案件的范围,并禁止地方政法委对刑事案件事实进行"协调"。地方政法委对刑事案件适用程序的协调功效应部分予以保留。地方政法委也不应对办案机关之间因处理刑事案件而出现的利益"纠葛"进行"协调"。此外,地方政法委不能以实现政策目标为由,以协调处理刑事案件的方式,不当干预办案机关正常办案。     

Creating Legal Space for Refugees in India: the Milestones Crossed and the Roadmap for the Future

The whole of South Asia is devoid of any standards and normson any dimension of refugee reception, determination and protection.The fact that a quarter of the world's refugees find themselvesin a non-standardized, if not hostile, refugee regime is a situationwhich does not augur well for either the mandate of UNHCR orfor any civilized society. The South Asian nations have theirown apprehensions, real or imaginary, about the utility of CSR1951 to their situations. Because of historical mishaps, politicalignorance, unstable democracies and exaggerated concern overnational security, there is hardly any motivation for, or anyenvironment in which there is a possibility for, the enactmentof national legislation. Non-governmental agencies, in their own way, have been tryingto influence the States to accede to the Convention and, also,to promulgate national laws. The most noticeable contributionis the draft national law for India, ‘Refugees and AsylumSeekers Act’, discussed and approved by the Fourth InformalConsultations on Refugees and Migratory Movement Sessions intheir Dacca Session. The draft legislation has been under considerationby the Indian government for some time but the issue, nonetheless,remains both important and urgent. There is an almost completeabsence of discussion about it in any forum, even the media.This paper is an attempt to examine the provisions of the draftlaw, insofar as it conforms to the international standards,and to show where it is found wanting. The paper also evaluatesthe competence of the draft law to answer security considerationsafter 9/11. The paper suggests suitable amendments that maymake the enactment of national law a reality, so that the voidin the international regime of refugee protection can be filledeffectively and fast.     

Content and Access Agreements: An Analysis of Some of the Legal Issues Arising from Linking and Framing

This paper examines the subject of content and access agreements with a detailed analysis of the legal issues that arise from linking and framing. The law is examined from a UK perspective with a detailed study of significant developments in the USA. The main focus of the discussion is on copyright and contract, but the subject of trespass is also considered to cover those situations where contract and copyright remedies may not be available. The copyright analysis reveals uncertainty in the extent of the protection offered and this has had the effect of encouraging the use of contractual licences. Detailed consideration is given to the use and enforceability of such contractual licences and to the actual and potential problems of their increasing use. The paper shows that there are advantages and disadvantages associated with both copyright and contract and certain conceptual difficulties in the use of trespass are discussed. Nevertheless the factors identified and the expected continuation of existing trends show that the use of licences and formal agreements relating to linking and access will increase, especially where commercial actors have perceived strong interests to protect.     

法律事实的意义辨析

民法学通常将法律事实作为引致法律关系得丧变更的具体事实。但该定位隐含着表达与所指的错位，并缺失立法视角的审视，其法律意义还容易被常识所覆盖。要修正这些不当，宜从立法视角出发，以规范为定位点，法律事实因此可一般化为与法律效果对应的构成要件，即在特定功能引导下经由专业逻辑安排而形成的格式化社会现实的规范工具，同时又能具体化为构成要件中的构造要素。它们的关系错综而有序，反映了民法的体系性。以规范面目出现的法律事实是法律理念与现实的对应与调适，在适用中还要与个案的具体事实再次对应与调适。法律事实由此充满互动的张力，同时也使民法学有了多元的知识资源。但无论如何，法律事实并非具体事实。     

现行审判委员会制度存在的问题及对策

现行审判委员会制度有利于保证办案质量,维护司法公正和提高人民法院的审判水平,但也存在许多不容忽视的问题。其主要表现在：讨论案件的范围不明确,提交讨论的案件过多过滥;讨论案件的程序不规范,背离审判活动的某些基本原则;审委会内部运行机制不健全,案件讨论质量偏低。针对这些问题,必须采取相应对策     

The Continuing Conceptual Crisis in the Common Law of the Contract of Employment

The effects on the common law of the contract of employment of the decision of the House of Lords in Johnson v Unisys Ltd are considered. The focus is on liability rather than remedies. It is argued that the case created conceptual instability in the common law understanding of a breach of a contract of employment. The logical consequence of the majority reasoning is that in some cases the existence or not of a breach by an employer is contingent on an employee's reaction. Relevant case law history and developments since the Johnson decision inform a detailed critique of the arguments that underpinned it. A solution is suggested according to which, prima facie, contracts of employment would be required to be performed in accordance with terms that have been implied by law.     

法律实证主义与规范理论——规范性的三个难题

在现代法律理论中,规范性既意味着法律对行为的影响,也用以表达有别于事实的另一世界。有关法律规范性的争议可分解为三个相互关联的理论难题:制裁与义务是否具有同样的规范作用?是否只有一般性的法律规则才具有规范性?哲学实证主义与法律实证主义对规范性的理解是否相同?通过思考这些难题可以得出结论:规范问题不同于价值问题,法律实证主义能够在探讨规范问题时坚持价值无涉的立场;法律的规范性不能化约为唯一一种规范作用,对此有必要进行更加精致的研究。     

法律行为:我国刑法中作为义务类型的合理性质疑

不作为犯罪的义务来源一直是我国刑法理论中最具争议的问题之一。结合相关案例,分别从驳论和立论两方面对法律行为被确立为作为义务类型的合理性进行质疑。认为肯定论的观点问题在于:存在着逻辑上难以论证的难题;刑法理论不应当以其他法律为圭臬;与刑法谦抑主义的要求背道而驰;容易引发不良的司法反映。因此,认为法律行为不应当作为独立的作为义务的来源形式。其意义有四:符合思维的逻辑;为实质义务论提供了客观的推动力;有利于实现刑法保护机能和保障机能的协调;有利于犯罪和刑罚实现规范化和法定化。     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Life after Bryan: intent under the anti-kickback law

In the past year, two courts have analyzed the proper standard of "willfulness" necessary to violate the anti-kickback law. At present, it appears that an intentional act, taken with knowledge that one is violating some law, is sufficient to violate the standard. It remains to be seen, however, whether the anti-kickback law will be deemed "highly technical," and thereby be violated only by one knowing that he is violating that particular statute. Moreover, the cases are not clear as to how close of nexus is required between the "knowingly violated" law and the anti-kickback law.     

Vladimir Shapoval: "The CEC Is Destined to Be the Scapegoat"

"The law is harsh, but it is the law"—the well-known ancient Roman saying is entirely suitable as a brief synopsis of the Lb.ua interview with the chairman of the Central Election Commission (CEC), Vladimir Shapoval.

"Any electoral legislation, I emphasize, any, will always be 95 percent the product of political expediency. Always. This way gives them an advantage—so be it." This is how he calmly parried my emotional "How can the advantage of the strong be codified in the law (!), and the weak essentially have no chance? What can you do, how can it be?" "All this ‘whining and crying,’ say, the law is this and that in substance, I do not accept it. The laws were adopted—so we will follow them. You cannot get away from it," he added.

It might seem to someone who does not know Vladimir Nikolaevich that the chief vote-counting official is being clever, "covering up" the "distortions" of the authorities "at the local level." He is in fact speaking frankly. The chairman of the Central Election Commission formed on the eve of the 2007 preterm parliamentary elections by a "coalition"—a retired Constitutional Court of Ukraine (CCU) justice, and a doctor of legal sciences who is an active member of the High Council of Justice (HCJ), he can permit himself that. Shapoval contrives to call things by their names: "How the law is written is another matter. And its parts are written abominably," he states bluntly.

In view of this, my discussion with Shapoval—formally tied to the start of a local elections campaign—went far beyond the bounds of a discussion of the legislation on this topic, and even the specifics of the campaign. The more so as I had already discussed this in detail with CEC Deputy Chairman Andrei Magera. Vladimir Nikolaevich, without concealing his indignation, related just what the HCJ is really afraid of (and it turned out it was not at all, or more precisely not only, what they are portraying it to be). Relying on nine years of experience as a CCU justice, he elucidated the risks of the invalidation of the 2004 constitutional reform by the current Constitutional Court—"only those who have face can lose it." Sketching out the situation in the body politic, he summed up, "If the Party of Regions (PoR) does not win the local elections, many questions will arise."     

论纠纷的构成机理及其主要特征

关于纠纷的认识，法学界并没有一个严格的界限，一般是笼统地将除刑事案件之外的一切社会不协调现象称为纠纷，而在社会学家看来，纠纷往往等同于社会冲突。事实上，从带有普遍性的矛盾、冲突到围绕着某一具体权益所发生的争议，并不是所有的这些不协调现象都和法律制度相关，只有那些属于法律框架之内的诸种不协调现象，或者可以通过法律程序解决的类似现象才具有法律上的意义。并非所有的纠纷都属于冲突，也不是所有的冲突都可以纳入法律的调整范围。纠纷的主要特征在于纠纷主体的明确性、纠纷双方的对抗性、纠纷的主观性和社会性以及纠纷解决上的自主性。     

关于国内客运航班延误的几个法律问题--兼及相关法律的完善

在航空运输中,由于多种原因,航班延误难以避免,因航班延误引起的纠纷时有发生.现行的民航法及相关法规对于航班延误的定义、承担延误的责任原因、承担责任的方式、延误赔偿限额等问题或者没有规定,或者规定太原则、笼统、不统一,缺乏可操作性.时至今日,关于航班延误的诸多问题仍然不能"依法解决".有关部门应当尽快制定并完善相关法律法规,使航班延误的处理工作步入法制化的轨道,依法解决航班延误的有关问题.     

人体损伤后医疗因素影响的有关问题探讨

人体损伤后医疗因素的影响会改变人身损害后果，加之目前我国法理及法律方面的不完善，使此类案件的审理出现一定困难，同时对法医学鉴定也有一定的影响。本文通过对８例案件的分析，讨论了人体损伤后医疗因素影响的特点，并结合法律的观点，提出法医学鉴定中需探讨的问题：１、医疗因素与人身损害之间的因果关系；２、医疗因素有无过失以及责任性过失和技术性过失的区分；３、外伤与医疗因素在人身损害中参与度的判定。从而提高法医学鉴定的科学性，为公正审判服务。     

动物画作的著作权研究——以实证主义为视角

动物的画作在实践中被展览、拍卖,涉及到诸多权利义务关系,需要法律来确认和调整。动物是否可以成为法律主体,长久以来存在激烈的争论。但是,为了满足社会的发展需求,及时处理新问题,我们可以确认动物在著作权法中的主体地位。采取类似无民事行为能力人的模式,赋予主人一定的法定代理权。     

The Ultimate Force of the Law: On the Essence and Precariousness of the Monopoly on Legitimate Force

In his new book, Fred Schauer adopts a prototypical approach to the law in order to reestablish the importance of “The Force of Law”, and I strongly support his claim that there are interesting things to be said about the relationship between law and force. One aspect concerns the special kind of force to which the law is related. In the tradition of political philosophy, this kind of force has often been characterized with the state's monopoly on legitimate force. Whereas the essay will support the idea that the law has a monopoly of force, it will challenge the idea that it is its legitimacy that makes it characteristic. It is a monopoly not so much on legitimate, but on ultimate force. The robustness of the force the law is—prototypically—related to, however, should not obscure the fact that the relation between law and force is quite delicate and precarious. Three strategies of the law to manage this fundamental precariousness are pointed out.     

The Rule of Law and EU Expansion

The article seeks to further discussion about the European Union's identification of the rule of law as a fundamental principle and pre-requisite for EU membership by prospective member states, despite the lack of a uniform Community-wide understanding of this concept. In this article, three points will be explored. Firstly, it will briefly examine the rule of law principle within the EU, as a contested concept, despite its pre-eminence as a fundamental principle upon which EU membership is based. Because of its contested nature, there exists across the EU, conceptual variations, leading to the problem of an apparent absence of a uniform conception of the rule of law. Secondly, the article will identify some of the main conflicts between the EU making this rule of law a pre-requisite for membership and the lack of a uniform conception for this fundamental principle. Thirdly, the article explores how these conflicts affect the development of legal cultures of prospective member states and what potential problems these conflicts imply. The article focuses on the European Union's lack of a uniform understanding of the rule of law and how this affects prospective member states from Central and Eastern Europe. This revised version was published online in August 2006 with corrections to the Cover Date.