Uberrima Fides, Foucault and the Security of Uncertainty

Uberrima Fides is a legal doctrine that governs insurance contracts and expects all parties to the insurance agreement to act in good faith by declaring all material facts relative to a policy. The doctrine originated in England in 1766 with the case Carter v Boehm ruled by Lord Mansfield. Ever since, it has become, with some differences in interpretation, a cornerstone of insurance relationships around the world. The role that trust plays within it, however, is not simple and should not be taken for granted. While it is expected that an idea of trust represents an order of truth, trust in itself is the outcome of a complex negotiation of moral orders. Semiotically, trust operates here not as a Kantian category for the understanding but as a signifier of an order of truth that upholds the possibility for insurance relationships. Trust, as sign, operates as a condition of possibility for the performance of insurance. In this article, a Foucaultian approach is employed to problematise the idea of trust and its role in insurance relationships. The case of mis-selling of insurance policies in the United Kingdom since the 1980s, which has given rise to numerous legal rulings, is used as the empirical site for the problematisation.     

Restoring Trust: Plachimada,the Human Trust and Anticipatory Negligence as Restorative Justice

This paper argues for proleptic restorative justice in the area of the environment in the form of a ‘human trust’. Drawing inspiration from the Roman public trust, the human trust insists that some ‘goods’ are so important that they can neither be owned nor spoiled; rather, they must be protected. In order to explain this model, water rights will be used as an example, specifically, the case of Plachimada’s battle with Coca-Cola over the use of local ground water in Kerala, India. This case allows consideration of the protection of water for people, the ongoing privatization of natural resources, and the strength of property rights. The human trust questions the merit of seeing the environment as property or in economic terms. Moreover, the human trust urges proleptic restorative justice, as in the case of the environment, restoration after the fact is often impossible. The potential harm is so extreme that one can argue for an action in tort of ‘anticipatory negligence’, a development of the quia timet injunction.     

Different Developmental Pathways from Parental Warmth to Adolescents’ Trust in Peers and Politicians: Mediating Roles of Adolescent–Parent Attachment and Belief in a Just World

The development of trust has its origin in parenting. However, it can be misleading to lump together all types of trust and to suppose that they are formed through similar developmental processes. Therefore, this research examined different developmental pathways of adolescents’ trust in individuals close to them (peers in this study) and those that are distant (politicians in this study). The study used longitudinal data collected from Czech adolescents (N = 904; 50 % of the participants were females). When adolescents were 13 years old, they and their parents reported parental warmth. Adolescents rated their trust in their parents and their beliefs in a just world at age 15 as well as their trust in peers and politicians at age 17. Both maternal and paternal warmth predicted adolescents’ trust in their parents, which in turn led to later trust in peers but not to later trust in politicians. However, maternal and paternal warmth only predicted their trust in politicians through the mediation of their personal belief in a just world. Our findings highlighted that although parents are important in the development of adolescents’ trust, mediating pathways differ depending on the types of relationships involved.     

不动产适用善意取得制度的限度

不动产登记簿的公信力和善意取得制度是两种构造迥异的物之交易信赖保护机制。善意取得制度以占有不足以充分表征动产所有权为构造前提,以竭力衡量所有权人与善意第三人的利益关系为轴心;不动产登记簿的公信力制度以不动产登记簿可以作为权利外观为构造前提,以完备的不动产登记制度为根基。善意取得制度的效果只能是第三人由无权利人取得物权;不动产登记簿的公信力所具有的效果不但有积极信赖保护与消极信赖保护之分,且其积极信赖保护的内容除由无权利人取得物权外,还包括由有权利人取得物权、受领给付、获得权利顺位等。因此,以善意取得制度保护不动产交易的便捷与安全,其局限非常明显。物权法第106条应限缩解释为主要适用于动产,不动产交易的信赖保护可通过解释物权法第16条来实现。     

Relationship Dynamics between University Research Centers and Industrial Firms: Their Impact on Technology Transfer Activities

In this study we focus on relationship-oriented factors such as trust, geographic proximity, communication, and university policies for intellectual property rights (IPR), patents and licenses and examine how these factors influence the technology transfer process between university research centers and their industrial partners. Data for this study were collected from 189 industrial firms working with 21 research centers affiliated with prominent research-oriented universities in the US. Our results showed that trust, geographic proximity, and flexible university policies for IPR, patents, and licenses were strongly associated with greater technology transfer activities. The implications for both researchers and practitioners are discussed.     

论我国司法信任的养成

司法信任是人们基于相信司法机关能够公正、高效处理案件,维护社会公平正义的心理预期,依照法律规则的指引积极利用和参与司法,并对法官、司法程序、司法裁判及司法制度表示充分的认同与遵从。司法信任的有无与多寡将决定公正、高效、权威司法制度建设的兴衰成败。从社会学的角度看,社会转型对原有信任环境及信任基础的破坏、司法亲和力的下降、职业法官专家系统尚未建立、对司法有限性的认识不足、对司法程序的参与度不够,是我国司法信任缺失的主要原因。要增进我国的司法信任,最终建立高度的司法信任,必须坚持增进司法信任与促进公正、高效、权威相统一,推动人格信任向系统信任延伸,促进交往信任向普遍信任拓展,激励依存性信任向主体性信任转化。     

Trust in the information society

Trust is an important feature for all users of the Internet who rely on the safety and security of network technologies and systems for their daily lives. Trust, or the lack of it, has also been identified by the European Commission’s Digital Agenda as a major barrier to further development of the information society in Europe. One of the areas in which concerns have been raised is in relation to children’s safety online. As a result, substantial efforts have been made by policymakers and by the industry to build greater trust and confidence in online digital safety. This paper examines what trust means in the context of children’s use of the Internet. Should policy on trust enhancement, for instance, include children’s own trust in the technologies or services they use or is it sufficient to seek to reinforce parental and adult confidence that children can be adequately protected? What is required to build that trust from either perspective? Does it need, or should it include a relationship of trust between parents and children? To tease out these questions further, the paper examines current European Union policy frameworks on digital safety, particularly industry responses to the call for a more trusted Internet environment for children, and argues that technical solutions to be effective need to carefully balance a number of competing objectives and to be sufficiently grounded in evidence of parental and child experience of the Internet.     

What the Dickens: Post-mortem privacy and intergenerational trust

The paper argues that protecting post-mortem privacy is not solely beneficial for the deceased and their relatives but enables intergenerational data-sharing. However, legal approaches alone are unlikely to generate the trust required and need to be supplemented with tools that assist data subjects in controlling what data they risk sharing more efficiently and, which they prefer to delete. Using the example of Dickens' “Bonfire of letters” as an example, we argue that the main challenge for law and digital technology is the cumulative risk of data breadcrumbs, which are likely to be individually harmless. Based on research within the EPSRC project “Cumulative Revelations of Personal Data”, we discuss how our findings indicate possible avenues to assist in more efficient intergenerational data sharing.     

Trust in digital records: An increasingly cloudy legal area

Trust has been defined in many ways, but at its core it involves acting without the knowledge needed to act. Trust in records depends on four types of knowledge about the creator or custodian of the records: reputation, past performance, competence, and the assurance of confidence in future performance. For over half a century society has been developing and adopting new computer technologies for business and communications in both the public and private realm. Frameworks for establishing trust have developed as technology has progressed. Today, individuals and organizations are increasingly saving and accessing records in cloud computing infrastructures, where we cannot assess our trust in records solely on the four types of knowledge used in the past. Drawing on research conducted at the University of British Columbia into the nature of digital records and their trustworthiness, this article presents the conceptual archival and digital forensic frameworks of trust in records and data, and explores the common law legal framework within which questions of trust in documentary evidence are being tested. Issues and challenges specific to cloud computing are introduced.     

中国信托业陷入低迷的法律分析——写在《信托法》实施以后

我国信托业虽然与银行业、保险业、证券业一并号称为现代金融体系的四大支柱,但信托业无疑是最弱的一支。《信托法》的出台并没有带来信托业的繁荣,在真正回归了＂受人之托,代人理财＂的核心主业以后,信托业却长期陷入了低迷。分析表明,在我国信托法中,双重所有权的法系冲突问题悬而未决,受托人容易沦为委托人的代理人,委托人和受益人容易出现对峙僵局,瑕疵承继制度矫枉过正,信托财产公示制度有名无实,没有合理的市场退出机制。这些立法缺陷是中国信托业陷入低迷状态的重要原因,也是信托制度在我国没有顺利实现本土化的突出表现。可以断言,中国的信托业已进入瓶颈阶段,信托法能否实现本土化是我国信托业能否走出低迷的关键。     

The interaction of criminal procedure and outcome

Procedural quality is an important aspect of crime victims' experiences in criminal proceedings and consists of different dimensions. Two of these dimensions are procedural justice (voice) and interpersonal justice (respectful treatment). Social psychological research has suggested that both voice and respectful treatment are moderated by the impact of outcomes of justice procedures on individuals' reactions. To add to this research, we extend this assertion to the criminal justice context, examining the interaction between the assessment of procedural quality and outcome favorability with victim's trust in the legal system and self-esteem. Hierarchical regression analyses reveal that voice, respectful treatment and outcome favorability are predictive of trust in the legal system and self-esteem. Further investigation reveals that being treated with respect is only related to trust in the legal system when outcome favorability is high.     

我国《信托法》第五章若干缺陷新窥

我国《信托法》第五章为“信托的变更和终止”。该章尽管条文不多,但却存在诸多问题:受益人或受益权变更的规定混淆了不同的法律关系,并导致不公平的结果;信托终止某些法定情形的设定在法理逻辑上难以贯通,混淆了信托终止与信托无效的区别;信托财产归属的规定与信托终止的某些法定情形不能契合;受托人权利救济的规定不利于保护权利人利益,并存在用语上的不当。上述问题的存在减损了《信托法》的立法水平,应加以重视。     

广州地区农民工政治信任状况的实证研究

我国农民工的数量极其庞大,广州地区是我国农民工重要的集散地。广州地区农民工的政治信任呈现出三大特点：政治信任的水平与信任客体的层级正相关、政治信任的认知基础比较模糊和新生代农民工的政治信任度较低。这一状况容易导致广州地区农民工群体性事件的发生,为此,我们需要采取以下措施来提升其政治信任度：提高农民工的工资水平,拓宽农民工的政治参与渠道,加强对农民工信任网络的整合,发挥电子媒介的政治传播功能。     

刑法司法公信力:从基础到进退

与司法公信力和司法公众认同之间的关系相对应,刑法司法公信力与刑法司法公众认同也互为表里,且后者构成了前者的基础。刑法司法公信力与刑法司法公众认同之间的关系有着心理学基础和规范有效性基础,并蕴藏着有效控制犯罪以达致维护社会和谐稳定的最终法治效果。如果想确保并提升刑法司法公信力,则必须致力于刑法司法公众认同,包括刑法解释公众认同、司法定罪公众认同和司法量刑公众认同。刑法司法解释公众认同、司法定罪公众认同和司法量刑公众认同先后构成了刑法司法公信力的环节性基础,从而确保了刑法司法公信力的环节性实现。刑法司法公信力以价值衡量为进,以法治底线为退。     

The trust “builders” in the technology transfer relationships: an Italian science park experience

This study proposes and assesses the effectiveness of a solution for disseminating trust in the technology transfer services. Focusing on the original experience of a science park located in Northern Italy, we propose a model focused on interface figures capable of conducting a direct dialogue with an enterprise and gaining its trust thanks to their reputation of reliability and expertise, the informal-personalised nature of the contact and their geographic, social, cultural and professional proximity. These factors stem from the features of this particular “boundary spanner” who identifies in the case-study with retired business owners/managers. This solution has proven to be particularly effective for small and medium-sized enterprises that typically show a preference for local and informal contacts within the networks and the need to refer to guide-figures when interacting with external knowledge sources because often they are not used to such scenarios.     

The Unlying God: Law Inspired and Inspiring in Plato's Ion and St. Paul's Letter to Titus

Law requires more than belief; law requires trust. The words of justice, or rather, just words are no less soif we believe in them or not. But the words of justiceare indeed dead, or rather, lead to death, if we trustthe exigencies of our selves and our times more than thelaw, if we fail to find ever-unfolding inspirationtogether in the language of law. St. Paul, therefore,does not attempt to solve the liar paradox that everyhuman being confronts in any attempt to speak truthfully,i.e., with meaning as an individual; rather, he willingly accepts the absurdity of the knowledge oftruth by looking, as Plato also did, toward ``the unlyingGod', not in the stasis of belief, but in the movementof trust, a communal covenant of those who are chosen,that is, those who chose each other.     

Creating markets in no-trust environments: The law and economics of smart contracts

Smart contracts, self-executing agreements based on blockchain technology, have the capacity to create trust in what we term no-trust contracting environments. We argue that using them in such environments is the path to unleash the full potential of smart contracts. Compared to the contract enforcement mechanisms characterized by traditional contract law or relational contracts, smart contracts can offer a superior solution for facilitating trade.Several lawyers and economists have debated whether smart contracts might offer the prospect of cheaper, faster and better transactions. As we discuss below, contract law scholars caution that they neither replicate the relational context essential for the day-to-day practice of contracting nor offer a superior solution to problems addressed by traditional contract law, such as contract validity and legality. We clarify and systematize the current thinking on the legal nature and reliability of smart contracts, and address the concerns of contract law scholars. While doing that, we suggest a step forward in characterizing contracting environments, contract enforcement mechanisms and the trust relationship underlying contracts.     

The tussle with trust: Trust in the news media ecology

This article offers a conceptual exploration of the changing notion of trust and distrust in today's news media ecology. Central is the question whether the relationship between the traditional media actors, media organisations, journalists and news users, can be increasingly characterised by distrust. Do we really notice a decline in trust in the news media? And moreover, are these feelings of distrust grounded? In order to answer these questions, we look at the changing economic, technological and societal context and how this might explain the strained relationship between these actors. We find that to a large extent the goals of the media actors diverge or even conflict. Mutually bridging these goals is difficult as they boil down to ideological and normative choices. This requires us to reconsider our ways of looking at trust. Therefore, this article's central argument is that a trusted relationship between the media actors is unlikely to result from a definitive settlement between the actor's conflicting goals. Rather, maintaining a trusted relationship is likely to become a matter of constant renegotiation. For this renegotiation to succeed, transparency and integrity are key. We find inspiration in the recent work of Solove (2001), Nissenbaum (2004) and Mansell (2008, forthcoming) to take a different, more contextual approach towards the notion of trust. As regards the relationship between news organisations and users, we suggest these norms should be negotiated in a balanced and transparent way, giving users an equal say in the process. The relationship between journalists and news users should be guided by a mutual interest in truth telling, whereby users are not only merely seen as consumers, but also as potential contributors to news stories. Policy makers in turn should act as facilitators of such spaces of renegotiation.     

Performing Regulation: Transcending Regulatory Ritualism in HIV Clinics

Sociolegal scholars suggest that regulatory encounters often are occasions for displaying a surface compliance decoupled from day‐to‐day practice. Yet ethnographic data from five highly regulated HIV clinics show that regulatory encounters open opportunities both for ritualism and—surprisingly—for transcending ritualism. Using a theatrical analogy, we argue that improv performance is the technology that enables regulatory inspectors and clinic staff to transcend ritualism. As regulatory encounters unfold, clinics' carefully prepared performances sometimes change into more cooperative interactions where inspectors and regulatees hash out details about how rules will be applied and even work together on reports for the regulators' supervisors. By “performing together,” regulatory inspectors gain access to the clinic's backstage where they can assess clinic workers' deeper conformity to ethical and scientific norms. But such joint performances are less likely where cultural divides and material scarcity make it difficult for clinic staff to gain inspectors' trust.     

Law versus technology: Blockchain,GDPR, and tough tradeoffs

Inconsistency between the way in which the law is structured, and the way in which technologies actually operate is always an interesting and useful topic to explore. When a law conflicts with a business model, the solution will often be changing the business model. However, when the law comes into conflict with the architecture of hardware and software, it is less clear how the problem will be managed.In this paper, we analyze the contradiction of blockchain technology and the requirements of GDPR. The three contradictions we examine are (i) right to be forgotten versus irreversibility/immutability of records, (ii) data protection by design versus tamper-proofness and transparency of blockchain, and (iii) data controller versus decentralized nodes. We highlight that the conflicts can be handled through focusing on commonalities of GDPR and the blockchain, developing new approaches and interpretations, and tailoring the blockchain technology according to the needs of data protection law.