International Law and Its Others

Netherlands International Law Review -     

知识产权、贸易和汇率以及其他

美国经济是世界经济的发动机,世界各 国经济也唯美国马首是瞻。在美国乃 至世界经济不景气,美国总统大选在即的情势下,美国财长斯诺9月2日的中国之行被赋予了深刻的涵义。行前,斯诺曾经声明,与中国政府的会谈将涉及知识产权、贸易和汇率等问题。他将要求中国政府放宽人民币的波动范围。知识产权虽置于中美重点协调的三大议题之首,     

雇佣犯罪刑事责任研究

雇佣犯罪并非一个法定的犯罪名称,它只是对司法实践中出现的一类带有雇佣关系犯罪现象的概括。雇佣犯罪概念的界定,必须能够涵盖实践中此类犯罪样态,揭示出此类犯罪样态的突出特点,在雇佣犯罪中,雇主可以是教唆犯、组织犯、实行犯等,在司法实践中,需要根据具体的案情,作具体的分析。     

Fairness of Allocations among Groups of Unknown Others

The aim of three experiments was to examine the idea that when judging the fairness of allocations people are influenced both by differences in relative payoffs and the number of comparisons among payoffs. The hypothesis tested was that judged fairness would be inversely related to the average difference between payoffs; average difference was defined as the sum of absolute differences between outcomes to groups divided by the number of pairwise comparisons between the groups. In Experiment 1, 24 undergraduates rated fairness and goodness (desirability) of allocations to one privileged and one underprivileged group consisting of fellow students. The participants were not themselves members of the groups and their ratings did not depend on evaluations by the groups members. Results showed, as expected, that differences in payoff determined judgments of fairness but also that larger sums were to some extent rated as more fair than smaller sums. However, as the sum increased, the effect of difference was shown to decrease. Fairness ratings partially mediated ratings of goodness. In Experiment 2, 72 undergraduates rated fairness and goodness of combinations of payoffs to two or four groups consisting of fellow students. Results confirmed that rated fairness was inversely related to the average difference between payoffs. The total sum of the groups payoffs was again found to somewhat increase rated fairness, whereas the number of members in the groups did not have any clear effect. In Experiment 3, 24 undergraduates rated the goodness of allocations to two, three, and four groups. The results showed similar effects as in the preceding experiments.     

法律职业技能及培养途径

法律职业技能是从事法律职业的人所应具备的与法律职业密切相关的能力、技术和方法的总称。它所涵盖的内容十分广泛,其中解决问题的技能、事实调查的技能和法律表达的技能之于法律职业尤为关键,法律职业技能的训练存在着不同的模式,本文所关注的是法学教育对法律职业技能培养的途径:课堂教学和非课堂教学即诊所教学对法律职业技能的意义。     

Religion in the Workplace: Eweida and Others v United Kingdom

The European Court of Human Rights judgment in Eweida and Others v United Kingdom dealt with the increasingly controversial questions of religious symbols at work and the clash between free conscience and anti‐discrimination norms. In a change of approach, it held that the right to resign could no longer be seen as adequate protection for religious freedom and that workplace norms that restrict religious liberty must satisfy a proportionality test. However, it accorded a wide margin of appreciation to States in reconciling freedom of conscience and freedom from discrimination, ruling that the importance of non‐discrimination could justify a failure to exempt a religious individual from complying with a policy forbidding discrimination on grounds of sexual orientation.     

计算机软件著作权保护和盗版问题研究

利用比较的分析方法和历史的眼光，对计算机软件著作权保护和盗版问题作了一些探讨。认为应该充分考虑到著作权人、软件企业、大众用户的利益并找到最佳平衡点，并且我国著作权保护应该立足于我国实际，最大限度保护我国软件企业利益和社会大众利益。     

Domestic Violence Victims Support Mandatory Reporting: For Others

Five states now have mandatory reporting laws when a victim of domestic violence is identified in a clinical setting, and many other states are considering such legislation. Advocates for battered women have frequently warned that abused women may not wish mandatory reporting laws. Published data derived from the opinions, wishes, and beliefs of women victims of domestic violence have been noticeably lacking. This study presents a preliminary study of 45 abused women. Results indicate that women victims overwhelmingly support mandatory reporting laws. In an apparent paradox, however, they were much less certain that mandatory reporting would have been helpful to them in their specific case.     

为他人行为侵权责任之归责基础

为他人行为责任的基础在于赔偿义务人能够支配加害人的行为或者能够对直接加害人的行为产生重大影响，此即支配或重大影响说。该说不仅是在对为他人行为责任各具体责任形态的构成要件、免责事由等进行归纳的基础上得出的结论，而且还有着深刻的经济和社会原因，即民事法律关系中隶属关系的存在、客观上人格不平等的凸显、个人自由意志的削弱以及责任保险制度的发达。提出支配或重大影响说对于梳理侵权责任法为他人行为责任的理论体系和责任形态、确定不同的责任类型、细分同一责任的不同层次以及在当事人之间合理分配损害都具有重要意义。     

Richard Quinney on the Transformation of Self and Others: An Interview

As an alternative means of achieving justice, restorative practices are touted as community based. The ownership of decisions regarding the response to crime belongs to the key stakeholders, including victim(s), offender(s), and members of the community, both large and small. Each is invited to participate and through their participation, the stakeholders come to own the justice process and its outcomes. One challenge facing restorative practices lies in getting the community to participate. Without the community, several aspects of justice that are restorative, including forgiveness, support for participants, and reintegration are unlikely outcomes. This research examines community involvement in a victim–offender mediation program through observation and analysis of the agreements produced. The findings suggest that while restorative justice is theorized as community based, the community, in this case, appears absent.     

免于恐惧的权利:不幸的哲学及其他

在总体实现小康社会的历史背景下,预测、把握和规范小康之后的目标和任务,既是发现和整合中国问题的需要,也是重新思考入的价值和意义的诉求.恐惧源于人对未来的不确定性、信任关系的瓦解、人格力量的缺失等方面,同时应当看到,在经济全球化进程中,安全需要在风险社会的命题下同样具有普遍意义.免于恐惧的权利作为集合型而非具体的权利概念,在改善人与人之间的和谐稳定关系上具有方法论的基础意义,为此本文论证,消除恐惧需要从权利哲学的角度反思盲目乐观的幸福哲学,重新把握责任和自由之间的关系,确立正义的社会结构.     

Abela and Others v Baadarani: The Politics Within the Supreme Court

The Supreme Court deals with many political cases, where policies are at stake, while on the other hand there is the politics within the Court which can also play an important role. It is difficult to judge the current system without sound empirical and theoretical studies, so one cannot confidently assess the effectiveness of the paper appeals in the American System in the light of the long history of the UK system, of different career paths of advocates in these two countries and of different routes of appointment for judges in both jurisdictions. Nevertheless, any interviews that were conducted with senior judges in the UK were conducted a long time ago and might not be applicable to the current realities. It is true that the British system is open to moderation—the elimination of the House of Lords and its replacement with the Supreme Court is the best example—but maybe more changes are needed. It is paramount that greater diversity in the profession brings fresh perspectives. This is evident in electing practitioners with different career paths, such as Justice Kennedy and Lord Sumption. The president of the Supreme Court, Lord Neuberger, even suggested advertising the next position in the Supreme Court to be on a part time basis, to enable the election of an academic. As stated in the introduction, since Abela and others v Baadarani is a case with important principles at stake, is there a space for political disagreement?