Constructive “Consent”: A Problematic Fiction

The law and society occasionally impute consent to an agent despite a clear lack of actual consent. A common type of such ‘fictitious consent’ is constructive consent. In this practice, we treat an agent as if she consented to Φ because she did Ψ. By examining how constructive consent operates in law (monitoring inmate phone calls and blood alcohol concentration testing on unconscious drivers) and daily life (physical contact in public spaces), I show that our treatment of agents in these cases bears no normatively relevant resemblance to consent because it is grounded in values and concerns other than autonomy. Thus, the practice may diminish the very autonomy consent proper seeks to promote. Hiding this potential for conflict creates the risk moral concerns will not be appropriately balanced when deciding on the permissibility of an action. We thus ought to be explicit that such cases don’t involve consent and its common justification.     

论法官直接认知与司法鉴定的界分

法官直接认知是法官直接对本案适用的法律、相关待证事实无需当事人举证证明或者在当事人举证已经达至证明标准时,直接加以确认形成内心确信的情形。司法鉴定是请求专家对案件事实或者证据事实出具相关意见的一种辅助证明活动。在我国的司法实践中存在着逃避法官直接认知而滥用司法鉴定的不良现象,应当在理论、立法和司法上准确理解法官直接认知和司法鉴定的功能与范围,二者不可简单替代,尤其不能以司法鉴定代替法官直接认知。     

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.     

The Ancillary-Care Responsibilities of Researchers: Reasonable But Not Great Expectations

This paper argues that, in a community of rights, the prima facie responsibilities of researchers to attend to the ancillary-care needs of their participants would be determined by a four-stage test (relating to placement, capacity, reasonable imposition, and fair demand). This test, it is suggested, sets a standard (and an example) for common law courts that are invited to recognize the ancillary-care responsibilities of researchers, whether as a matter of contract or tort law.     

Judicial Greatness and the Duties of a Judge

This paper addresses the phenomenon of judicial greatness by developing a general concept of greatness and applying it to law. Under the view offered in the paper, greatness (in general, and also in law) is connected to theoretical or methodological diversification. When applied to adjudication, this means that great judges are revered because they successfully make a prima facie case for their novel adjudicative methods. This is not a judicial duty but rather a voluntary (and in some circumstances, morally supererogatory) project. However, once a judge succeeds in making such a prima facie case, he is exempt (to a certain degree) from other judicial duties (including the duty to follow the law). This thesis challenges many theories of judicial duty, which do not allow normative room for supererogatory actions in law. The paper demonstrates these claims by discussing two paradigmatic great judges – Chief Justice Marshall and Justice Holmes.     

Subjects with agency? Children’s participation in family law proceedings

Galvanised by the UN Convention on the Rights of the Child, many jurisdictions now recognise children’s rights to participate in decisions that affect them. While such legal rights have increased, research on family law proceedings shows how children’s views can still be undermined, ignored or not even sought in decisions about them. This article uses the academic resources of childhood studies, to consider dominant and alternative narratives of children’s participation within Scottish family law. Drawing upon reported case law and empirical research, the article concludes that children’s participation gains protection by being institutionalised but children’s participation is attenuated because it is not recognised as relational and contextual. As rationality, consistency and autonomy are privileged, the weight given to children’s views is lessened by concerns about children being manipulated or distressed. Courts and their decisions may be child-focused, centring on children’s welfare, but they are not child-inclusive, involving children in decision-making.     

Towards a Contextual Definition of Rape: Consent,Coercion and Constructive Force

This paper considers ‘consent-based’ and ‘coercion-based’ models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non-violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non-violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.     

论我国商标法使用条款之完善——以iPad商标纠纷案为视角

连续三年不使用的商标,已经成为死亡的商标,在侵权诉讼中,在后使用人可以以在先使用人连续三年不使用该商标为由进行抗辩,不构成侵权.结合近期媒体热炒的iPad商标纠纷,讨论对连续三年不使用商标的效力问题,从而关注我国商标法修改中的使用条款,提出对应的立法修改建议.     

Prima Facie Ought. A Logical and Methodological Enquiry

The pressing problem of prima facie validity must be treated on the basis of a differentiation of types of normative rules. Rules stating principles or purposes are always applied as views determining the decision by weighing (but not by subsumption) so that the problem of prima facie validity does not arise. Neither is there a problem of such a restricted form of validity concerning power-conferring rules. The author shows that prima facie validity of rules of behaviour must not be treated as a different kind of validity and that the notion of prima facie validity can be explained in a logically satisfactory way on the basis of traditional norm-logical considerations.     

劳动者个人信息处理中同意的适用与限制

劳动者个人信息处理中同意的内在困境比其他社会关系都更为鲜明。应打破劳动法、民法与个人信息保护法的理论藩篱,重视对劳动者同意的适用及体系性限制。劳动者信息处理的合法性来源存在两种替代个人同意的适用,分别为"订立或履行合同所必需"的默示同意及以集体合同或劳动规章制度为载体的集体合意。为促进信息利用,应允许雇主在超越"订立或履行劳动合同所必需"时,以劳动者明示同意作为信息处理的合法性来源。无论同意的性质为默示同意、集体合意或明示同意,均应强调对同意自治性的审查,利用"目的限制"与比例原则,丰富"合法、正当、必要"体系性限制的内涵,平衡劳动者个人信息权益保护与信息利用,从而纾解劳动关系下同意的困境。     

论合同解除权的行使

合同解除权产生的情形因约定和法定解除权的不同而不同。合同解除权的行使只需由解除权人单方通知对方即可,无须征得对方同意,也无须通过人民法院或仲裁机构。合同立法既赋予合同一方的解除权,又赋予合同另一方的异议权。合同解除权行使的法律后果是合同解除,但合同解除对合同双方还会引发很多的问题。     

The Strictness of Strict Liability

This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.     

从“抽象证明责任”到“具体举证责任”——德、日民事证据法研究的实践转向及其对我国的启示

德国、日本民事证据法研究的发展沿革及最新趋势显示,客观(抽象)证明责任的主导地位正在被能更好解释诉讼证明实践的具体举证责任概念所取代。这一趋势启示我国民事证据法的研究重心也应转移到以表见证明、摸索证明、事实推定、阐明义务、证明妨碍等制度为主要论题的具体举证责任领域,以这一理论指导司法实践以实现案件事实认定过程中的信息最大化与诉讼公正。     

Theories of Criminalization

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived.     

Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial-Reasoning

Judicial obligation to enforce the law is typically regarded as both unproblematic and important: unproblematic because there is little reason to doubt that judges have a general, if prima facie, obligation to enforce law, and important because the obligation gives judges significant reason to limit their concern in adjudication to applying the law. I challenge both of these assumptions and argue that norms of political legitimacy, which may be extra-legal, are irretrievably at the basis of responsible judicial reasoning.     

Why fairness cannot be automated: Bridging the gap between EU non-discrimination law and AI

In recent years a substantial literature has emerged concerning bias, discrimination, and fairness in artificial intelligence (AI) and machine learning. Connecting this work to existing legal non-discrimination frameworks is essential to create tools and methods that are practically useful across divergent legal regimes. While much work has been undertaken from an American legal perspective, comparatively little has mapped the effects and requirements of EU law. This Article addresses this critical gap between legal, technical, and organisational notions of algorithmic fairness. Through analysis of EU non-discrimination law and jurisprudence of the European Court of Justice (ECJ) and national courts, we identify a critical incompatibility between European notions of discrimination and existing work on algorithmic and automated fairness. A clear gap exists between statistical measures of fairness as embedded in myriad fairness toolkits and governance mechanisms and the context-sensitive, often intuitive and ambiguous discrimination metrics and evidential requirements used by the ECJ; we refer to this approach as “contextual equality.”This Article makes three contributions. First, we review the evidential requirements to bring a claim under EU non-discrimination law. Due to the disparate nature of algorithmic and human discrimination, the EU's current requirements are too contextual, reliant on intuition, and open to judicial interpretation to be automated. Many of the concepts fundamental to bringing a claim, such as the composition of the disadvantaged and advantaged group, the severity and type of harm suffered, and requirements for the relevance and admissibility of evidence, require normative or political choices to be made by the judiciary on a case-by-case basis. We show that automating fairness or non-discrimination in Europe may be impossible because the law, by design, does not provide a static or homogenous framework suited to testing for discrimination in AI systems.Second, we show how the legal protection offered by non-discrimination law is challenged when AI, not humans, discriminate. Humans discriminate due to negative attitudes (e.g. stereotypes, prejudice) and unintentional biases (e.g. organisational practices or internalised stereotypes) which can act as a signal to victims that discrimination has occurred. Equivalent signalling mechanisms and agency do not exist in algorithmic systems. Compared to traditional forms of discrimination, automated discrimination is more abstract and unintuitive, subtle, intangible, and difficult to detect. The increasing use of algorithms disrupts traditional legal remedies and procedures for detection, investigation, prevention, and correction of discrimination which have predominantly relied upon intuition. Consistent assessment procedures that define a common standard for statistical evidence to detect and assess prima facie automated discrimination are urgently needed to support judges, regulators, system controllers and developers, and claimants.Finally, we examine how existing work on fairness in machine learning lines up with procedures for assessing cases under EU non-discrimination law. A ‘gold standard’ for assessment of prima facie discrimination has been advanced by the European Court of Justice but not yet translated into standard assessment procedures for automated discrimination. We propose ‘conditional demographic disparity’ (CDD) as a standard baseline statistical measurement that aligns with the Court's ‘gold standard’. Establishing a standard set of statistical evidence for automated discrimination cases can help ensure consistent procedures for assessment, but not judicial interpretation, of cases involving AI and automated systems. Through this proposal for procedural regularity in the identification and assessment of automated discrimination, we clarify how to build considerations of fairness into automated systems as far as possible while still respecting and enabling the contextual approach to judicial interpretation practiced under EU non-discrimination law.     

BURDEN OF PROOF AND PRIMA FACIE CASE IN WTO DISPUTES SETTLEMENT—A PERSPECTIVE OF CHINESE LAW

This paper discusses the concept of burden of proof and prima facie case,respectively,in WTO dispute settlement based on the legal doctrine on burden of proof in Chinese law.From the perspective of Chinese law,the burden of proof has three implications on two levels,namely the behavior burden of production and the behavior burden of persuasion in the procedural sense,and the result burden of bearing unfavorable consequence in its substantive sense.A prima facie case also includes the weaker account and the stricter account.They do not mean the same in different contexts,but what is the exact meaning thereof in a given context is clear.The real confusion of the burden of proof in WTO dispute settlement is prima facie standard which,in practice,to some extent,relies on the determination by the panel on case-to-case basis.     

论刑法上承诺之正当化根据及其司法适用

本文从刑法上承诺之正当化根据入手,重点研究了中国刑法理论以及刑事审判关于被害人承诺的理解和处理案件的基本立场。承诺之正当化的根据乃是意思自治;在中国,被害人承诺是一种超法规的正当化事由;没有达到法定年龄的人的同意是无效承诺;重型精神病人无论是同意和他人发生性关系,还是同意他人拿走自己的财物等,其"同意"都不能排除相对行为人的强奸或盗窃等行为的犯罪性。中国刑法学一般将基于认识错误的承诺分为"事实错误"与"动机错误"两类。事实错误不能排除相对行为人之行为的犯罪性,动机错误则可以排除相对行为人之行为的犯罪性。     

夫妻财产和债务关系的解构与重构——以《民法典》第1062-1065条的解释论为中心

对于夫妻债务问题而言,原《婚姻法解释二》第24条所体现的"推定论"与指导《民法典》第1064条第2款立法的"用途论"均非妥当的应对策略,切合实际的治本之道只能是实现夫妻对外责任财产的有效区隔。为此起见,针对民法典相关规定的解释论应当严格区分作为夫妻内部财产关系的"抽象财产价值"划分问题与作为夫妻外部财产关系的民商财产权归属问题,并以"财产权表面归属原则"所认可的公示和类公示规则充任后一问题的解决指南。唯有首先满足这些前提,并辅之以债权人撤销权等配套制度,夫妻之间方有可能最终达致"共债共签、各债各偿"的理想状态。     

Basic Rights and Democracy in Jurgen Habermas's Procedural Paradigm of the Law*

Abstract . A central element of Habermas's discourse theory of law is his procedural paradigm. This includes a procedural understanding of basic rights, which is supposed to resolve both the classical tension between basic rights and democracy and the problem of collision between basic rights. I try to show that the procedural paradigm can do the first only at the cost of inadmissible idealization. Under realistic conditions one can only attempt to institutionalize the tension between basic rights and democracy as rationally as possible. Also, the problem of collision of basic rights cannot really be solved by the procedural paradigm. What can be substantiated is merely a prima facie priority of participation in the process of public opinion- and will-formation over merely private activities. Whether this prima facie priority becomes a definite priority in a concrete case or group of cases depends on the weight of counterarguments, as to which the procedural paradigm is silent.