基于TRIPS框架下保护传统知识的正当性

对于在TRIPS框架内处理传统知识保护的问题,目前国际社会存在着严重的分歧,但是,反对方的观点并不能构成否定TRIPS框架下保护传统知识的正当性的充分理由,因为恰恰是TRIPS本身提供了在其框架内保护传统知识的根据。首先,TRIPS语境下的“私权”并非是个人化的权利,传统知识的群体持有并不构成在TRIPS框架下保护传统知识的理论障碍;其次,TRIPS确立的平衡各种利益的知识产权保护目标,体现了法律的公平原则,是传统知识寻求TRIPS保护的合法依据;第三,TRIPS将知识产权保护与贸易联系起来的实施机制,使之成为当今保护传统知识的最有效的形式。传统知识保护的国际协调,不是将TRIPS的现行规则推倒重来,而是在TRIPS框架下创造一种适应于传统知识特点的保护机制。     

Commentary: Innovation Policy for a New Era

This commentary offers a response to the Sonderholm, Bird, and Flynn et al. articles, and argues that the current innovation crisis requires more ambitious approaches, as well as a serious consideration of alternative mechanisms for R&D such as prizes.     

Contextualising Regional Innovation Systems in a Globalising Learning Economy: On Knowledge Bases and Institutional Frameworks

In order to advance the understanding of which types of regional innovation system represent effective innovation support for what kinds of industry in different regions analyses must be contextualized by reference to the actual knowledge base of various industries as well as to the regional and national institutional framework, which strongly shape the innovation processes of firms. Of special importance is the linkage between the larger institutional frameworks of the national innovation and business systems, and the character of regional innovation systems. In making the arguments about a general correspondence between the macro-institutional characteristics of the economy and the dominant form and character of its regional innovation systems a link is provided to the literature on ‘varieties of capitalism’ and national business systems.     

技术创新乘数效应的发生机理及路径选择——一个新的理论分析框架

技术创新乘数效应是一个有待拓展的重要理论命题。考察技术创新乘数效应的内在运行机理可以发现,技术创新乘数效应是通过规模经济、范围经济、联结经济和速度经济等形态生成的,并与福特制、丰田制和温特制等组织载体相耦合。因此,中国应通过多种路径为充分发挥技术创新乘数效应创造条件。     

Towards Good Practice in Juvenile Justice Policy in the Commonwealth

Any witness who is not able to testify due to lack of support or protection is a loss to the proper functioning of a criminal justice system. In this context it is generally accepted that creating a climate for witnesses to testify truthfully and without fear of reprisals is essential to fulfilling the goals of truth and justice. Accordingly, addressing the issues of witness protection and support is a central aspect of a well-functioning criminal justice system; one that contributes not only to the rule of law through more effective investigations and trials, but also ensures that witnesses are treated with the recognition and care they deserve for their contribution to finding the truth. The principle that victims in the criminal justice system must be treated with courtesy, compassion and respect for their personal dignity entails a responsibility on the part of national authorities to realise this basic principle through the development of appropriate mechanisms designed to provide assistance to the victims. However, building effective national victims/witness support and protection is challenging for any state, and especially so for small Commonwealth jurisdictions due to capacity and other constraints. The Commonwealth seeks to provide technical assistance and capacity building to support its members in promoting the rule of law and has developed and disseminated a best practice guide for the protection of victims and witnesses in the criminal justice system. This article seeks to highlight the valuable findings of the Commonwealth guide and to provide guidance to policy-makers, legislators, police, prosecutors and other stakeholders in criminal justice practice.     

Towards European Procedural Primacy in National Legal Systems

Abstract: In the polycentric judicial architecture of the Community, there is a rich, constant interplay between national procedural rules and European interventions. In the making of the European legal order, EC law depends on national procedural law and therefore, substantive EC supremacy depends, existentially, on procedure. In this context, the author argues that the traditional sharply defined dichotomy of national procedural autonomy versus Community law effectiveness no longer reflects the implicit course of action laid down by the Court of Justice. Instead, the European legal order has moved, as a praxis, from national procedural autonomy to a more subtle combination of national procedural competence and European procedural primacy. The rationale behind this trend testifies both to the importance of the interrelationship between procedure and substantive law in the making of Europe and to the flexibility of procedural law; EC law depends on procedural law and procedure readily submits to the demands of a new legal order. In doing so, it also creates new choices and venues for European supremacy.     

Comparing Juvenile Justice Systems: Towards a Qualitative Research Project in East Asia

This paper contrasts the assumptions and methods used by quantitative criminologists with the approach to comparison pursued by the interpretive tradition in sociology. Whereas quantitative studies tend to conceal distinctive legislative or institutional responses in particular countries, interpretive studies make it possible to address internal debates about policy issues, as well as how practitioners exercise professional judgement. The paper considers a variety of ways in which the interpretive traditions of symbolic interactionism and ethnomethodology have approached comparison. It also considers the conceptual and practical issues that might arise in conducting a qualitative comparative study about juvenile justice within East Asia focusing on Japan, South Korea and Taiwan. Whereas quantitative studies tend to ask questions that interest Western researchers, interpretivism makes possible a dialogue between countries that have different institutions, philosophies and cultures.     

迈向实践:反思当代中国刑事诉讼知识体系

当代中国刑事诉讼知识体系呈现出四大特征:首先知识内容过度理想化。其次,而这一点与提供知识的生产者主要是法学家密切相关。再次,这必然会导致研究方法从"元理论"作为研究的出发点,并以演绎方法推演出具体的刑事诉讼制度、规则,从而构建的刑事诉讼知识有一种自治性、系统性特点。最后,如此背景下的知识必然是功利的、实用主义的。中国刑事诉讼知识的这些特征与中国刑事诉讼研究带有强烈的非实践性和意识形态性有着密切关系。要突破现有知识格局,则必须调整现有的研究方法和视野,亦即:首先,需要包括实务者和法学家在内的多元知识提供者;其次,研究方法要关注实践,注重归纳、经验与实证,同时保持一种开放的、多元的心态,建立一种可争论、可反驳的刑事诉讼理论。再次,在生产目的上要求理论与实务并重,在内容上要求以本土中国为关注语境,从而构建中国刑事诉讼理论。     

邓小平的政策创新思想

邓小平关于政策创新的一系列论述是其政策思想的重要组成部分.对"什么叫社会主义"的新认识是政策创新的理论基础;对"怎样建设社会主义"的新探索是政策创新的逻辑前提;"建设具有中国特色社会主义"的新任务是政策创新的现实要求;"三个有利于"的新标准是政策创新的价值取向.邓小平政策创新的实现途径包括:(1)解放思想、更新观念是政策创新的前提条件;(2)立足实际、实事求是是政策创新的基本原则;(3)大胆地闯、及时总结是政策创新的关键所在;(4)加强学习、提高素质是政策创新的重要措施.     

夫妻财产制的修改:法政策之检讨

建立完善的夫妻财产制是我国婚姻法修改的目的之一。本文首先阐明夫妻财产制的内容结构体系,依据夫妻共同财产制原理和夫妻财产契约理论分析现行法及专家建议稿的缺失,并从夫妻财产制的内容结构、法定财产制和约定财产制三个方面提出完善的建议。     

Philosophical Criminology and Complex Systems Science: Towards a Critical Theory of Justice

Chaos theory (or complex systems science, CSS) has made considerable inroads across a range of social science disciplines, including criminology. However, little has been done to assess the relevance of chaos theory for advancing a philosophical criminology. This task is significant because it tells us something about where, how, and why most modernist theories of crime are of limited utility when advancing the interests of justice and humanism in society. Accordingly, this article outlines the essential features of a philosophical criminology, including its commitments to ontology, epistemology, aesthetics, and ethics. Moreover, the contexts in which several key chaos theory principles such as iteration, sensitive dependence on initial conditions, bifurcations, attractors, fractal space, and dissipative structures function to promote a philosophical criminology are explored. A number of implications stemming from this analysis for purposes of critical theory building in law, crime, and justice studies are provisionally delineated.

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Legal Constraints on the Use of Race in Biomedical Research: Toward a Social Justice Framework

This article addresses three questions concerning the legal regulation of the use of race as a category in biomedical research: how does the law currently encourage the use of race in biomedical research?; how might the existing legal framework constrain its use?; and what should be the law's approach to race-based biomedical research? It proposes a social justice approach that aims to promote racial equality by discouraging the use of "race" as a biological category while encouraging its use as a socio-political category to understand and investigate ways to eliminate disparities in health status, access to health care, and medical treatment.     

A Case Management Instrument for Use in Juvenile Justice Systems

The Youth Level of Service/Case Management Inventory (YLS/CMI) is a standardized instrument designed to assist juvenile justice system personnel in assessing risk and needs in their clients and in case planning. The measure is presented as an alternative to the unstructured informal assessments that so often guide decisions in these systems. It is relevant to all phases of the judicial process, including decisions regarding pretrial detention, transfers and waivers, preadjudicatory diversion, and sentencing. It is particularly relevant to case planning in community and institutional settings. The instrument is described, issues in application discussed, and the available psychometric information reviewed.     

美国管制革新的方法

美国<行政程序法>,总的来说是一件相当不错的法律,很好地经受住了时间的考验.当然,我们也承认它存在一些缺陷,并需要更新,但是反对商业团体和他们在国会中的支持者们所提出的这样巨大的、有时甚至是激进的改变.