欧盟知识产权海关保护条例——Council egulation （EC） No.1383/2003评析

知识产权海关保护是随着国际贸易出现大量盗版和假冒商品等非法货物贸易的情况下产生并发展起来的一种行之有效的知识产权保护制度。欧盟知识产权海关保护条例的实施有效地遏制了盗版和假冒商品对国际贸易秩序的危害,对欧盟知识产权权利人利益的维护起到了至关重要的作用。但其不足也很明显：Council Regulation（EC） No.1383/2003的执行很大程度上是依赖于各成员国政府和海关当局,另外Council Regulation（EC） No.1383/2003允许成员国对其相关内容做出细化或作出不同的规定,这将导致各国海关对知识产权保护出现不同的执法效果。     

What the Trial Judge Needs to Know about the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance

Since the 1950s, there have been several international multi‐lateral treaties for recognition and enforcement of child and spousal support orders. They operated, primarily, in civil law countries where “creditor‐based jurisdiction” allowed establishment of an order in the country of habitual residence of the child or the custodial parent. The United States, requiring “minimum contacts” with the debtor to establish personal jurisdiction, could not be a party to such agreements. For nearly fifty years the U.S., and a few states, sought to fill the need for international reciprocity by negotiating individual country‐to‐country or state‐to‐country arrangements. With ratification of the 2007 Family Maintenance Convention, the United States was finally able to join in a multi‐lateral treaty. The treaty took effect in the United States on January 1, 2017, establishing procedures for international recognition, enforcement and modification of family support orders with 35 other countries already party to the Convention (including the entire European Union). The grand bargain struck during the negotiations between 2003 and 2007 was that the U.S. would honor a foreign order if, under the facts presented, there were sufficient minimum contacts with the debtor that would have supported personal jurisdiction if the order had been entered in any state in the U.S. If unable to recognize a foreign order, the U.S. agreed to take steps to issue a new one. The treaty establishes administrative procedures that, in many respects, are nearly identical to interstate enforcement of domestic support orders in this country. But there are also aspects of the treaty that are entirely new and warrant explanation for family and juvenile court judges. This article focuses on several unique provisions of the treaty that judges and attorneys need to understand.     

美国与欧洲竞争法的差异与联系

美国对于欧洲制定竞争法虽然产生了重要影响,但是欧洲竞争法根植于欧洲本土的反垄断法律思想,体现着大陆法系法律发展的特有特征,是与美国反托拉斯法在本质上相互区别的另一种法律模式.然而随着欧洲经济一体化的加速,欧盟竞争法日益呈现出司法化的倾向,在对竞争评价以及限制竞争效果的评估方式上呈现出趋同于美国反托拉斯法的倾向,并且积极引入竞争法私人执行机制,所以,二者之间之间在法律渊源、实施机制和垄断衡量标方面既存在着差异又具有一定的联系.     

反垄断法私人执行的优越性及其实现——兼论中国反垄断法引入私人执行制度的必要性和立法建议

反垄断法私人执行的立法和实践始于美国,现在已经成为大多数国家的必然选择.反垄断法的私人执行具有自发性优势和比较优势两大优势,"赔偿功能"和"威慑功能"是私人执行"自发性优势"的主要体现,而"救济功能"和"指示功能"则是私人执行"比较优势"的主要表现.为了充分实现反垄断法私人执行的优越性,在制度设计上应遵循"法律上可能,经济上有利"的原则.为了促进我国反垄断法的有效实施,应引入私人执行制度,并在反垄断立法中对私人执行制度作出详细的规定.     

The European Commission's Own ‘Preliminary Reference Procedure’ in Competition Cases?

This article considers the implications of the European Commission, as primary administrative enforcer of competition law in the Union, using its own ‘preliminary reference procedure’, through observations in national court proceedings under Council Regulation 1/2003, to minimise the risks of divergent application of EU anti‐trust rules under the decentralised system of enforcement ushered in by that Regulation. It sets the scene with the relationship between the European Commission and national courts in competition law, before describing the relevant provisions of the Regulation and its accompanying Courts Notice. It then discusses the legal nature of the Commission opinion as a Union instrument. Identifying cases where the Commission has offered observations, it assesses the implications of administrative intervention in judicial decision making. It finds that greater transparency is crucial for legitimacy, legal certainty and maximum impact on consistent application.     

Rule‐Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements

The boundaries between public and private actors are increasingly blurred via regulatory governance arrangements and the contracting out of rights enforcement to private organizations. Regulation and governance scholars have not gained enough empirical leverage on how state actors, private organizations, and civil society groups influence the meaning of legal rules in regulatory governance arrangements that they participate in. Drawing from participant observation at consumer law conferences and interviews with stakeholders, my empirical data suggest that consumer rights and, in fact, consumer law, mean different things to different stakeholders tasked with adjudicating consumer rights. Rights afforded consumers who purchase warranties are now largely contingent on first using alternative dispute resolution structures, some created and operated by private organizations with soft state oversight and others run by stakeholders but with greater state oversight and involvement. Using new institutional sociology and regulatory governance theories, I find that stakeholders involved in overseeing and administering these dispute resolution systems filter the meaning of consumer rights through competing business and consumer logics. Because consumer laws mean different things to stakeholders tasked with adjudicating consumer rights, two different rights regimes simultaneously exist in this field. I conclude that how rule‐intermediaries administering private and state‐run dispute resolution systems conceptualize what consumer laws mean in action may have implications for regulatory governance and more broadly, consumers' access to justice.     

The Cat and Dog Fur Regulation: A Case Study on the European Union’s Approach to Animal Welfare

The Cat and Dog Fur Regulation, which bans the importation and exportation of real cat and dog fur, has been in force since 2008. The Regulation was a welcome development, however, a recent investigation carried out by the Humane Society International/UK and Sky News uncovered the sale of items of clothing containing real cat fur on the British high-street. This discovery, coupled with a recent report by the European Commission on the application of the Cat and Dog Fur Regulation, has undermined the efficacy of the Regulation. It raises questions as to the enforcement of the Regulation, and indeed the enforcement of EU animal welfare protection and legislation in general. The Cat and Dog Fur Regulation is but one piece of legislation, however, using this Regulation on a micro-level, helps understand the EU’s approach on a macro-level. The Cat and Dog Fur Regulation typifies the supineness of the EU when it comes to dealing with ethical issues. The European Commission needs to ensure that Member States are fulfilling their obligations under the Regulation and EU animal welfare provisions in general, by adopting a more forceful approach, which may necessitate it taking infringement proceedings under Article 258 TFEU. There is a need for Member States to carry out DNA testing for real cat and dog fur on goods purchased online, especially those coming from outside the EU. There is a dearth of academic commentary on the Cat and Dog Fur Regulation. The lack of discussion undermines the importance of this piece of legislation. Brexit also has implications for EU animal welfare. UK had already banned fur farming before the Regulation, thus the ban on the importation and exportation of fur should remain under domestic law.     

GROWTH AND QUALITY OF U.S. PRIVATE PRISONS: EVIDENCE FROM A NATIONAL SURVEY*

Research Summary: Private prisons incarcerate 5.3% of the sentenced, adult population in the United States. The present study presents selected results from a 1999 survey of administrators who monitored private prisons in the United States (or U.S. territories). Among the findings of interest, the private sector experienced significant problems with staff turnover, escapes, and drug use. Where possible, private prison operations were compared with those of the Federal Bureau of Prisons. Policy Implications: Given the issues raised here with public safety, public sector agencies contracting for private prisons need to develop incentives or other means to ensure that private sector operators retain experienced custody staff.     

试论GATT/WTO协定之私人执行——一个美国法的视角

私人执行GATT/WTO协定是指私人如何行使在GATT/WTO协定下的国家贸易权利。"1934年体制"下"进口竞争性产业"与"出口导向性产业"之间的博弈使得美国国会与总统在共同行使国家经济主权中,通过缔结GATT/WTO协定,为美国创设了市场准入权利与贸易救济权利。这些贸易权利要在国内法中被私人执行,则必须创新国内进口与出口贸易救济制度。     

论国际法院判决在美国的执行——以涉及《领事关系公约》的判决为重点

美国国内对执行国际法院判决存在"国际主义观点"、"国家主义观点"和"折衷观点"等不同的看法。尽管美国政府出于现实原因,敦促国内法院遵守国际法院的判决,但美国最高法院对于在国内直接执行国际法院判决持否定态度。国际法院判决在美国的执行不力,凸现出国际法院的现有执行机制的不足,也反映了美国反对国际法在其国内法律体制中直接适用的倾向。     

They watch for color: mixed-status couples experience with the police

This research qualitatively examines experiences with the police for 42 interracial mixed-status couples, living or originating mainly from the Southern United States. Race-based policing operates within a structure of racist nativism where white skin is a marker of U.S. citizenship, and brown skin is an indication of being foreign-born. Law enforcement at all levels, including the local level, situated their attention toward Latino immigrant men, especially those perceived as working-class, when compared to white U.S. citizen wives. The penalties for racial profiling included family strain through detention and deportation of Latin-American born men. In addition to human rights violations for undocumented Latino immigrants, U.S. citizens are serving as collateral damage in an already broken immigration system that racially profiles Latino immigrant men. Couples’ precariousness situations contest the rhetoric that police are only protecting citizens’ national security. Framed by racist nativism, the findings have implications for anti-oppressive, evidence-based immigration policy.     

Assessing the Impact of State Human Trafficking Legislation on Criminal Justice System Outcomes

Since 2003, state legislatures in the United States have been active in passing legislation aimed at combating human trafficking. To date, all states have passed laws that criminalize acts of human trafficking, though with significant variation in the penalty structure and associated legal provisions. This article examines what aspects of state human trafficking laws are most impactful at increasing the arrest and prosecution of human trafficking suspects. Using panel data on state laws and associated enforcement actions from 2003 to 2012, this study confirms that more comprehensive state laws that invest in antitrafficking resources are most strongly associated with human trafficking arrests and prosecutions. States that make legislative provisions for victim assistance, law enforcement training, statutory task forces, and mandatory reporting have higher antitrafficking criminal enforcement. The political environment in which state human trafficking laws are enacted also influences their enforcement.     

公共惩罚与私人惩罚的互动——一个解读法律制度的新视角

公共惩罚与私人惩罚既相互排斥又相互补充,公共惩罚与私人惩罚的互动可以作为一个解读法律制度的视角。国家为维持法律实施的垄断,通常会对私人惩罚手段(尤其是私人暴力)进行限制,但为节省公共惩罚资源的支出,法律又必须在某些场合容忍甚至利用私人之间的监控与惩罚,公共惩罚资源的有限性迫使国家把私人之间的监控和惩罚视为一项重要的社会控制资源。法律制度的设计应当充分发挥公共惩罚和私人惩罚的比较优势,合理划分公共控制区域和私人控制区域,并努力追求社会控制总成本(即公共控制成本和私人控制成本之和)的最小化。西方近代政治的古典自由主义、中国古代政治的消极无为主义以及公法与私法的区分都在一定程度上体现了这一原则。     

论《罗马条例Ⅰ》对欧盟合同冲突法的发展及对我国的启示

在国际民商事判决的执行和非合同之债法律适用领域,欧盟已经成功地以条例的形式进行了统一立法。但在合同冲突法领域,欧盟却迟至2008年才将1980年《罗马公约》转化为共同体立法——《罗马条例Ⅰ》。转化使得欧盟合同冲突法融入了共同体这一自足的法律体系,规则的解释得以统一,和其他领域的冲突法规则得以协调。在内容方面,《罗马条例Ⅰ》对《罗马公约》进行了一定发展,适度强化了当事人意思自治原则;对客观选择方法做了较大调整,降低了最密切联系原则的地位;以惯常居所统一了属人法;排除了客观选择方法中合同分割法的适用。这些发展均以追求合同法律适用的确定性、可预见性等欧洲大陆国际私法的传统价值为目标。这些发展对我国即将进行审议的《涉外民事关系法律适用法》中的合同冲突法部分的规则设计具有莫大的借鉴意义。     

Safe at home? Policing the U.S. hometown in a post 9/11 environment

Despite the prominence of terrorism concerns on the national agenda, three areas of public policy pose more significant challenges for local law enforcement in the United States: illegal gun proliferation and distribution; offender incarceration and re-entry paths; and investments in the lives of children. This paper argues that the current direction of public policy in these latter areas should be a primary concern, because these policies not only impact law enforcement in a negative way, but also threaten the strength and vitality of the communities law enforcement is trying to serve. Moreover, the dangers posed by these policies are far more calculable, more likely and more destructive over the long run than those posited for more extreme, though less-likely threats, to which the U.S., as a nation, is committing enormous sums of money, for seemingly incremental, public safety benefits. The role of law enforcement executives is critical to how these issues will be addressed.     

Undetected opiate use: A comparison of official drug user files and a private methadone clinic's patient records

To address the question of the extent of undetected opiate use and the characteristics of this user-population, a research study was undertaken comparing a random sample of ‘walk-in’ patients from a private methadone treatment clinic to police intelligence files on drug-users in a major eastern U.S. city. An independent law enforcement agency substantiated the accuracy of the police files, and the treatment agency had procedures which verified the addiction of the patients. The result of the comparison of these two information sources disclosed that: (1) 51.8 percent of the patients were unknown to the law enforcement authorities; (2) a higher percentage of blacks were unknown than whites, and (3) seventy percent of the addicts under thirty years of age were not known to the police as drug users. These findings tend to discount official estimates of addiction rates often based on law enforcement records, and suggest some interesting treatment methods and research questions.     

Diversity in Policing

Abstract

Police and minority relations have received much interest among public and academic audiences, yet little is known about policing in Latino communities. As Latinos emerge as the largest minority group in the United States, researchers and police agencies are increasingly concerned with the experience of Latinos in the criminal justice system. One strategy for improving police and community relations is to enhance the diversity of law enforcement agencies. Therefore, the purpose of this study is to examine the ethnic composition of law enforcement agencies in major U.S. metropolitan areas between 1990 and 2000. Using data from the U.S. Census and the Law Enforcement Management and Administrative Statistics (LEMAS) survey, it appears that the growth in the U.S. Latino population has been met with an increase in the percentage of Latinos as sworn full-time police officers. Further, the degree of enhanced diversity varies by the ethnic composition of the community served. Implications of findings for improving relations between police and the Latino community are discussed.     

Realizing the Rights Revolution: Litigation and the American State

The implementation and enforcement of civil rights laws in the aftermath of the mid‐twentieth‐century rights revolution has been a prominent concern for a multidisciplinary group of scholars. This article reviews a recent literature that is devoted to better understanding the dynamics of judicial authority and enforcement power and, in particular, how courts are frequently empowered to enforce laws through complex interactions with an array of public and private actors. The article emphasizes new books by Charles Epp and Sean Farhang, which each examine different features of this enforcement process. In The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010), Farhang explores the frequency with which Congress has chosen to enforce its civil rights statutes through incentivizing private litigation. In Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (2010), Epp examines how civil rights are enforced and transformed through the relationship between administrators, activists, and lawmakers within bureaucratic organizations. Together, these books expand our understanding of the politics and processes of implementing rights in practice and, more broadly, challenge and enrich our perspective on the effectiveness of the American state in enforcing rights. The often complex series of self‐conscious legislative, judicial, and administrative choices and interactions necessary in order to deliver rights protections requires that we view policy enforcement from a broader institutional and political perspective. From that perspective, we can see that effective implementation is far from automatic.     

美国《2018年出口管制法》评析与启示

美国《2018年出口管制法》在术语定义和政策声明、出口管制的权限和管理、许可证、确定和控制"新兴和基础技术"出口的要求、涉及与美国全面禁运的国家有关的审查、惩罚和强制执行等方面作出了许多新规定。该法使美国出口管制体系走向法典化、系统化和多边化,建立跨部门许可审查机制,确立"合规协助"条款,扩大了"新兴和基础技术"这一出口管制范围,并扩张出口管制域外管辖权,同时加强了惩罚和执行力度。我国应注重"新兴与基础技术"的管制,完善出口管制系列清单,扩大出口管制管理机构的执法权限,为出口经营者出口合规提供具体指导,严格执行阻断法,推进双边与多边出口管制标准的设立以应对该法的实施。     

Converging on the Poles: Contemporary Punishment and Democracy in Hemispheric Perspective

In this article I place U.S. punishment trends in comparative context, seeking to show that the contemporary penal regime in the United States resembles patterns of governance prevalent throughout Latin America, the world's most economically unequal region. In both the U.S. and Latin America, I argue, neoliberal reforms have produced societies characterized by ever greater divides between the haves and have-nots, and state criminal justice institutions increasingly position themselves to police this boundary rather than mitigate its effects. In this article, I examine these trends through the lens of wars on crime and terrorism, arguing that in societies polarized between a dwindling set of haves and an ever more numerous (and potentially unruly) group of have-nots, an inexorable pull makes criminal justice institutions more aggressive in their enforcement of class and racial boundaries. Hallmarks include a widening of the criminal justice net (by broadening definitions of criminal activity, for example) and a deepening of the deprivations visited on those ensnared within it. The article concludes with reflections on the need for reconfiguring conceptions of human rights and their relation to security.