Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ... injured or put in peril" to include plaintiffs who suffer pure mental harm by witnessing at the scene another person being injured through the process of suffering pure mental harm in the form of psychiatric injury occasioned by the defendant's negligent act or omission. The Wicks decision raises the question whether the expanded liability of defendants for pure mental harm is economically sustainable.     

《〈民事诉讼法〉修改决定》评析——兼论我国《民事诉讼法》的修改

《民事诉讼法》修改是众望所归的事,但以《〈民事诉讼法〉修改决定》的形式通过却有点出乎大家的意料。《〈民事诉讼法〉修改决定》有其创新之处,但其暴露的不足也是显而易见的。应当尽快启动对《民事诉讼法》的全面修改程序,将其打造成一部既有前瞻性又有特色的能很好服务于民事诉讼的法律。     

TRIPS from Doha to Cancún ... to Ottawa: global developments in access to treatment and Canada's Bill C-56

In November 2003, Canada introduced legislation to amend the Patent Act so that manufacturers could obtain licences to make generic versions of patented pharmaceutical products for export to countries lacking sufficient capacity to produce their own. Bill C-56 aims to implement an August 2003 decision of the World Trade Organization (WTO) that relaxes its rules on pharmaceutical patents to allow this kind of measure. While the bill is a welcome development, it contains several serious flaws that will undermine the initiative and render it largely meaningless. Civil society organizations, including the Canadian HIV/AIDS Legal Network, have called on the Canadian government to remedy the flaws before Bill C-56 is enacted. This article provides an overview of recent global developments leading up to Canada's initiative, as well as an analysis of Bill C-56 itself.     

浅谈医学会医疗损害鉴定专家出庭作证

《侵权责任法》统一了＂医疗事故＂和＂医疗过错＂在民事赔偿标准上二元化和医疗诉讼的诉讼案由及法律适用。然而,医疗损害鉴定的模式应如何走向,《侵权责任法》却没有提及。江苏省医学会大胆革新,开展医疗损害鉴定,在新修订的《民事诉讼法》进一步强调鉴定人出庭作证的背景下,江苏省医学会适应新形势组织医疗损害鉴定专家出庭作证,改变了以往医学会鉴定专家不署名、不出庭的历史,提高了鉴定公信力。     

作为立法术语的“环境侵权”之辨析

我国现行立法主要使用“环境污染和其他公害”、“环境污染损害”或“环境污染危害”来表达或部分表达环境侵权的涵义，而民法学者则使用“环境污染损害赔偿”、“污染环境侵权”“污染环境的损害事实”和“污染环境致人损害”等相关术语。于是乎“环境侵害”、“环境侵权”、“环境损害（赔偿）”等概念成为一组话题相同、内容相关、客体相交（叠）、因果相联、混扰相“助”的环境法学科“御用”语词。对此，应首先以法律责任体系为基础，厘清环境法律责任、环境民事法律责任、环境侵权民事法律责任等术语间的相互关系，不能以笼统的“环境侵权”来混用“环境侵权行为”与“环境侵权责任”这两个术语，使用时应加以区分。将来的相关立法应以“环境侵权”为核心术语。     

Intentional torts claims in medical cases

Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report recommendations created a clear divide between "negligence" and "intentional" torts. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and Territory legislatures. This article explores the potential application of intentional torts claims in a medical context in light of recent case law. It identifies advantages for plaintiffs who plead intentional tort claims, including onus of proof, causation, remoteness, the quantum of compensatory damages and the availability of aggravated and exemplary damages.     

In The Shadow Of Terror: The Illusive First Amendment Rights Of Aliens

Despite a sustained period of peace and prosperity in the United States, Congress has enacted considerable anti-terrorism legislation, which-like past laws based in fear of foreign threats to the national security-erodes freedom of expression. This article provides a political, historical and legal background before examining this legislation and its application in cases affecting the rights of First Amendment claimants. The article finds that most courts, including the United States Supreme Court, have tended to use a formulaic strict scrutiny analysis of the legislation that endorses the government's position that, for example, the Antiterrorism and Effective Death Penalty Act of 1996, is a content-neutral response to the important interest in reducing the threat of terrorism. The article argues that the courts instead should adopt an analysis based on the real intent and discriminatory effects of the law to find it is impermissibly content based, overbroad and vague.     

THE DEMISE OF THE DISPARATE IMPACT THEORY

Books reviewed in this article: Book Reviewed in this article: Shortly after this article was completed and accepted for publication, Congress passed the 1991 Civil Rights Act. In order to understand and appreciate the significant implications of the new legislation, it is first necessary to review the legislative and litigation history of disparate impact discussed here. Immediately following is a legislative update entitled “The Resurrection of the Disparate Impact Theory?”     

THE EVOLUTION OF THE CIVIL PROCEDURE SYSTEM OF CHINA

This article reviews the initiation, stagnation, recovery and reformation of the Civil Procedure Law of China, and places an emphasis on the evolution of the Civil Procedure Law under the background of judicial reformation. This article observes the amendment of the Civil Procedure Law, the adjustment of the rules of civil procedure, the establishment of the basic principles of the Civil Procedure Law, the trend of the Civil Procedure Law that is based on the research of major litigation systems and the perfection of legislation.     

论枉法裁决罪的认定(下)

《刑法修正案(六)》第20条规定的罪名,是枉法裁决罪,而非枉法仲裁罪,称为枉法仲裁罪易致误解,并极易扩大修正案确定的适用范围。基于仲裁与诉讼的诸多不同,在枉法裁决罪的认定和适用上,不能简单地参照民事、行政枉法裁判罪的标准,而应在协调与仲裁立法(含《仲裁法》、《民事诉讼法》)及国际公约内容内在逻辑一致性的基础上,从严把握枉法裁决罪的犯罪构成及定案标准。     

德国民事诉讼法的历史嬗变

大陆法系国家的民事诉讼法或多或少都受到过德国民事诉讼法影响,统一的德国《民事诉讼法》制订于1877年,至今仍在适用;然而,德国民事诉讼法自身的形成经历了漫长的过程,在制定以后也进行了多次修改。按照时间的顺序梳理德国民事诉讼法的历史渊源和法律继受,可以从它发展演变和不断改革的过程中发现德国民事诉讼法具有旺盛生命力和蓬勃生机的原因,可对我国的民事诉讼法修订有所启发。     

Natural Resource Damages for Climate Change—An Idea Whose Time Is Not Yet Come,Part II: Climate Change NRD Claims—Get Coverage

Climate change litigation is in its infancy. As it matures, one type of suit that may emerge is a climate change-based natural resource damages (NRD) claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While it is unlikely that climate change-based NRD claims could succeed under current law, a policyholder sued for such claims should be entitled to a defense under its liability insurance policies. Against the backdrop of some recent climate change lawsuits, this article anticipates insurance industry arguments against coverage for climate change NRD claims, and examines counter arguments in favor of coverage for such claims.     

Principles,patient welfare and the Adults with Incapacity (Scotland) Act 2000

The law surrounding decision-making for adults who lose their capacity varies considerably internationally. In many cases legislation has taken a protective and consequently restrictive role for adults with incapacity and often the issue of capacity assessment within the appropriate legal framework is circumvented. In Scotland, the introduction of the Adults with Incapacity (Scotland) Act 2000 modernised that nation's approach to incapable adults. This article describes briefly the pre-2000 Act situation in Scotland, discusses the main provisions of the Act, reviews the use of principles in incapacity legislation in Britain, and discusses issues relating to patient welfare. The use of principles to extend patient autonomy into incapacity is demonstrated and compared with the English and Welsh Mental Capacity Act 2005 (the 2005 Act) through a discussion of how the principles in each of those Acts promotes particular ideologies of decision making. Finally, the article examines recent Scottish case law relating to the 2000 Act and discusses how the courts are currently interpreting the principles of the Act.     

安全保障义务:属性识别与责任分配——兼评《民法典侵权责任编(草案第三次审议稿)》第973条

《侵权责任法》第37条第1款是违反安全保障义务的过错责任之规范基础,其设置于该法第6条第1款过错责任一般条款之后是过错责任从一般到具体的规范逻辑范式。侵权法的功能主要为救济与预防,故宜将第37条"造成他人损害"修改为"侵害他人民事权益",从而为停止侵害、排除妨碍、消除危险等责任方式的司法适用提供通道。为充分救济损害,宜认可安全保障义务具有法定义务与合同义务的双重属性。根据补充责任制度的内在逻辑,第37条第2款的适用范围应限缩为"第三人的主观故意+安全保障义务人的主观过失",进而在立法上明确补充责任人承担责任后可向第三人追偿的法权结构。对《侵权责任法》第37条的检讨,可以作为完善《民法典侵权责任编(草案第三次审议稿)》第973条的基础。     

论船舶承租人的油污损害赔偿责任

按照油污损害赔偿民事责任公约的规定,船舶所有人对船舶溢油而产生的费用和造成的损失承担责任,承租人 无需承担责任。但是,公约并不禁止船东在承担了责任之后再依据租船合同和相关国内法的规定向承租人追偿。 1990年美国油污法扩大了责任主体的范围,依照该法,不仅船舶所有人,而且船舶承租人和船舶经营人也要承担 责任。可以说,前者是承租人的一种间接责任,而后者则是一种直接责任。这两种责任的性质、基础有所不同,责 任人是否可以享受责任限制也有所区别。     

THE YOUTH CRIMINAL JUSTICE ACT

In April 2003, the face of Canada's youth criminal justice system changed considerably. The Young Offenders Act (YOA) was repealed and the substitute legislation, the principle-laden Youth Criminal Justice Act (YCJA), came into effect. It is not an entirely new act but was designed to build on the strengths of the YOA and address its weaknesses. The biggest criticism of the YOA was its lack of clear legislative direction; through the numerous principles and additional provisions, the YCJA proposes a remedy. The focus of this article is on two areas of the Act in particular, extrajudicial measures and sentencing, as these areas experienced the most change in the process of reforming the legislation. Specifically, these sections of the Act are analyzed in relation to four of the perceived problems under the YOA, all of which tie into the lack of clear legislative direction. If the provisions contained in these segments of the YCJA are adhered to in the manner and sentiment intended and if the principles are made a priority, then 1) the rate of youth incarceration in Canada should decrease, 2) the courts should no longer be overused, 3) there should be proper distinction between various degrees of seriousness of crimes, and 4) there should be more consistency in youth sentences across the country.     

环境侵权归责原则之反思与重构——基于学说和实践的视角

归责原则是环境侵权制度的核心和关键,考察现行归责原则理论和实践不难发现,学说上存在过错责任与无过错责任之争,立法上面临《物权法》和《侵权责任法》的抵牾,实践中不同类型案件适用不同的归责原则。这三重悖论的根源,在于环境侵权未能依据环境学规律区分为拟制型污染侵权和实质型污染侵权,进而适用相应的归责原则:实质型污染侵权适用无过错责任;拟制型污染侵权适用过错推定责任,超标视为过错,在双方均无过错时,则以公平责任作为损失分担的原则。     

New developments in Belize Laws and Regulations affecting Trusts and Service Providers

The months of April and May 2007 have seen the enactment oftwo new pieces of legislation and one set of regulations. InJune 2007 the Regulations governing the Trust (Amendment) Act2007 and the International Financial Services Commission (Amendment)Act 2007 were passed. ‘The Trust and Company Services Providers (Best Practices)Regulations 2007’ were published in the Belize Gazetteon 7 April and came into force on 16 April. ‘The Trusts (Amendment) Act 2007’ and ‘TheInternational Financial Services Commission (Amendment) Act2007’ were signed on 30 May and were both published inthe Belize Gazette on 2 June. The regulations for these two, ‘The International TrustsRegulations 2007’ and ‘International Financial ServicesCommission (Licensing) Regulations 2007’ were enactedon     

Therapeutic cloning in Australia: one small stem from man, one giant leap for mankind

In 2002 the Australian Parliament enacted legislation which prohibited both therapeutic and reproductive embryonic cloning. Just four years later, in December 2006, this same legislation was amended, reversing the prohibition on therapeutic cloning, while retaining the ban on reproductive cloning. The Prime Minister, sensing the political mood, allowed a conscience vote. This contrasted with his decision several months earlier against introducing any changes to the 2002 Act, despite 54 recommendations having been made by a Statutory Review Committee. Approval of the legislation had as much to do with the careful drafting of the provisions as with any rational, social or scientific factor. The legislation is narrow in scope, retains an absolute prohibition on reproductive cloning and contains strict regulations with heavy criminal penalties. The Act requires a review after three years. A number of questions remain. Does stem cell research demand a global rather than a local approach, by way of an international Covenant? Does the legal status of a cloned embryo need further examination? Will the embryo have a separate legal standing recognised by law? These are some of the questions which will need addressing as the law tries to keep up with science.     

Bent into Security: Barrister Contribution to a Skewed Order in Two Terrorism Prosecutions in Australia

This article explores two terrorism prosecutions – R v. Benbrika and Ors and R v. Elomar and Ors – to probe how Australian lawyers approach the integration of national security interests into the heart of public law. A brief background is provided followed by an analysis of how the Security Legislation Amendment (Terrorism) Act 2002 (Cth), as amended, and the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) deviate from the legal order to produce a ‘skewed blend’ between national security and criminal justice. We examine three ways in which barristers contribute to bending of process in counter‐terrorism trials: accommodation to the precautionary standard, the resetting of equality of arms expectations, and brokered agreements that depend on the deferential relationships within the court. Consequently, the moral asymmetry of terrorism is the backdrop for the ‘plausible legality’ of ‘just world’ derogations from liberal politics.