通行权益的冲突与平衡--以道路交通事故责任为切入点

在道路交通安全问题上,存在着行人、非机动车一方的通行安全利益与机动车方的快速、畅通利益之间的冲突.立法者应当基于现代法治、人权的理念,通过合理分配道路交通事故的风险责任以平衡双方的利益,最终实现社会利益的最大化,进而达到维护良好交通秩序的目的.     

Request of General Electric Company to exempt medical diagnostic equipment from the Commission's rules--Federal Communications Commission. Report & Order in Gen. Docket 81-461

This Order establishes an exemption for certain electronic medical equipment from FCC regulations designed to minimize radio interference caused by devices that employ digital circuitry. The costs of testing for compliance with specific emissions limits would be severe and most medical equipment has characteristics which inherently reduce the likelihood of interference. The Commission in this action amends the rules to relieve the compliance burden.     

机动车责任保险制度在机动车事故中的作用

机动车责任保险在交通安全管理中起着抑制交通灾害,促进民事责任制度发展的重要的作用。我国虽然实行了机动车第三者责任强制保险制度,但仍然存在一定的缺陷。解决的对策是应改变责任限额全国统一数额的规定;同时扩大道路交通事故社会救助基金单一的垫付抢救费的职能,增设机动车事故人身伤害补偿金制度。     

破产别除权理论与实务研究

别除权是破产程序中一项重要的优先受偿权利,其优先权的行使不受破产清算与和解程序的限制。根据新破产法的规定,别除权之债权属于破产债权,其担保物属于破产财产。别除权的基础权利是担保物权及特别优先权,定金担保债权和一般优先权不享有别除权。同一担保物上存在两个以上的担保性质相同或不同的别除权时,应依据相关法律规定确定各项别除权间的清偿顺序,以保证破产程序的公平、顺利进行。别除权人享有破产申请权,也应当申报债权,未依法申报债权者不得依照破产法规定的程序行使权利。别除权人是债权人会议的成员,未放弃优先受偿权者也有表决权,但对债权人会议与其无利害关系的特定决议事项无表决权。新破产法对债权人会议表决标准的规定仍有需完善之处。     

我国对外贸易反垄断豁免失当性分析及其完善

我国《反垄断法》第15条规定的对外贸易豁免包括进口豁免和出口豁免。进口卡特尔豁免的基础系竞争者保护优先于竞争保护,这不利于我国当前及未来进口产业的竞争力提高,并有可能违反WTO国民待遇原则,应予以禁止适用。我国出口豁免的卡特尔系混和性的,其规定虽具一定合理性,但必须对"正当利益"豁免要件进行限缩性解释,防止此条款的滥用引起不必要的损害。     

突破与超越:《侵权责任法》产品后续观察义务之解读

《侵权责任法》第46条确立了我国产品的后续观察义务。这一制度的确立符合社会安全和公平正义的理念。然而,由于缺乏相关的解释,该条在适用中将与产品质量法中的发展缺陷免责条款存在冲突,第46条可以认为是对发展缺陷免责条款的修正。另外,违背后续观察义务所产生之产品责任应遵循无过错责任原则,侵权责任范围不应包括惩罚性赔偿。     

Exemption of chemical mixtures. Final rule

On December 15, 2004, the Drug Enforcement Administration (DEA) published a Final Rule corrected January 4, 2005) that implemented new regulations concerning chemical mixtures that contain any of the 27 listed chemicals. The Final Rule added a new provision not previously raised by DEA in any proposed rulemaking. This newly introduced provision exempted domestic and import transactions in chemical mixtures that are regulated solely due to the presence of the List II solvent chemicals acetone, ethyl ether, 2-butanone, or toluene from the Controlled Substances Act (CSA) recordkeeping and reporting requirements. Because this exemption was not previously proposed in any rulemaking, DEA implemented this exemption on an interim basis and requested public comment on this exemption provision. Based upon a review of all comments, DEA is finalizing this exemption. As such, domestic and import transactions in chemical mixtures containing the List II chemicals acetone, ethyl ether, 2-butanone, and toluene shall be exempt from CSA chemical recordkeeping and reporting requirements.     

Background interference from car carpets—the evidential value of petrol residues in cases of suspected vehicle arson

This study was undertaken to test the theory that there is a natural occurrence of petrol on the carpet or carpet mats of motor vehicles that would interfere with the potential determination of arson residues. Part of this study was also to determine what levels of background interference due to the carpet matrix are likely to be encountered in the general population of motor vehicles. The study was conducted in three parts.

• 1.A persistence study was conducted to determine the evaporation and persistence of unleaded petrol on carpet. The results indicate that small volumes of petrol (less than 100 μl) are unlikely to be detected on carpet after a 24 h period. Larger volumes will be detected after this period, but will generally not be detectable after 1 week.
• 2.A known history study was conducted by the insertion of carpet mats, for varying lengths of time, into the driver area of separate vehicles, with subsequent analysis for the presence of petrol. A ‘history’ sheet was completed by the occupants of the vehicles during the insertion periods to record the frequency of contact with petrol, and general usage of the vehicles. The results indicate that petrol will not normally be found on previously uncontaminated carpet mats after a 6-week period of use in a vehicle, however, the occupation and behaviour of the occupants can affect the types of compounds deposited onto the carpet.
• 3.An unknown history study was conducted via the collection of carpet or carpet mat samples from vehicles with an unknown history, and subsequent analysis for the presence of petrol. Six of the 150 samples examined contained petrol. These results indicate that only a small proportion of motor vehicles will exhibit the presence of petrol on carpet or carpet mats, and then only as evaporated petrol.

All of the above findings increase the evidential value of finding significant volumes of fresh or slightly evaporated petrol on carpet products in motor vehicles.     

机动车损害赔偿归责原则之变动——基于“中国式过马路”行为展开

我国《道路交通安全法》对机动车一方、行人等交通参与者的安全注意义务都给予了明确规定.然而,“中国式过马路”行为模式的产生给该法律中规定的机动车损害赔偿归责原则带来了巨大挑战.为了体现法律的公平理念,机动车损害赔偿领域应构建无过错责任原则和过错责任原则并存的归责原则体系,即在机动车第三者责任强制保险的责任限额范围内实行无过错责任原则,在保险责任限额范围外采取过错责任.     

Medical devices; reprocessed single-use devices; requirement for submission of validation data. Direct final rule

The Food and Drug Administration (FDA or we) is amending certain classification regulations for reprocessed single-use devices (SUDs) whose exemption from premarket notification (510(k)) requirements have been terminated and other reprocessed SUDs already subject to premarket notification for which validation data, as specified under the Medical Device User Fee and Modernization Act of 2002 (MDUFMA), are necessary in a 510(k). Elsewhere in this issue of the Federal Register, we are publishing a companion proposed rule, under FDA's usual procedures for notice and comment, to provide a procedural framework to finalize the rule in the event we receive any significant adverse comment and withdraw the direct final rule. This action codifies actions taken in previous Federal Register notices in accordance with MDUFMA.     

车辆轨迹侦查

机动车的普及使得以机动车为交通工具或侵害目标的犯罪增加。对于涉车犯罪案件，通过车辆可识别特征对车辆进行追踪和认定，在此基础上进行车辆轨迹侦查有其现实必要性。从现场勘查、视频监控、交通违章、治安卡口等多方面可以获得车辆轨迹侦查的情报。车辆轨迹侦查的目标包括查清真实车牌、分析行驶轨迹、判断活动范围、查明附加特征、获取人员体貌以及关联其他轨迹等。探讨车辆轨迹侦查“从车到人”、多维轨迹拓展、“车案碰撞”串并案件侦查等三种侦查模式在侦查工作中的应用。     

Constructive cigarette regulation

Professor W. Kip Viscusi argues for a move away from the adversarial approach to tobacco regulation, an approach that is currently embodied in class action lawsuits and the proposed broadening of FDA regulatory power over cigarettes. In this Article, he suggests that the FDA should take a constructive role in fostering technological innovations to promote cigarette safety, in much the same way that the government currently fosters safety improvements in motor vehicles and jobs. Professor Viscusi claims that the objective of government policy should be to promote informed consumer risk taking--an approach which recognizes that adult consumers have a right to smoke and to incur the associated risks. He provides survey data demonstrating that although consumers know that smoking is a risky decision, they have little exposure to information regarding the comparative riskiness of various cigarette brands. According to Professor Viscusi, the government should assist in compiling and disseminating information regarding the comparative risks of different smoking options and the effects of certain innovative safety features for cigarettes. Making this information available would enable consumers to make more informed smoking decisions and potentially minimize the health hazards that smoking poses.     

Age Discrimination in Employment Act; retiree health benefits. Final rule

The Equal Employment Opportunity Commission is publishing this final rule so that employers may create, adopt, and maintain a wide range of retiree health plan designs, such as Medicare bridge plans and Medicare wrap-around plans, without violating the Age Discrimination in Employment Act of 1967 (ADEA). To address concerns that the ADEA may be construed to create an incentive for employers to eliminate or reduce retiree health benefits, EEOC is creating a narrow exemption from the prohibitions of the ADEA for the practice of coordinating employer-sponsored retiree health benefits with eligibility for Medicare or a comparable State health benefits program. The rule does not otherwise affect an employer's ability to offer health or other employment benefits to retirees, consistent with the law.     

Tobacco products, exemptions from substantial equivalence requirements. Final rule

The Food and Drug Administration (FDA) is issuing this final rule to establish procedures for requesting an exemption from the substantial equivalence requirements of the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). The final rule describes the process and statutory criteria for requesting an exemption and explains how FDA reviews requests for exemptions. This regulation satisfies the requirement in the Tobacco Control Act that FDA issue regulations implementing the exemption provision.     

Dissemination of information on unapproved/new uses for marketed drugs, biologics, and devices--FDA. Proposed rule

The Food and Drug Administration (FDA) is proposing to issue new regulations pertaining to the dissemination of information on unapproved uses (also referred to as "new uses" and "off-label uses") for marketed drug, including biologics, and devices. The proposal, which would implement the dissemination provisions of the Food and Drug Administration Modernization Act of 1997 (FDAMA), would describe the content of and establish procedures for a manufacturer's submissions to FDA before it may begin disseminating information on the new use. The proposal also would describe how manufacturers seeking to disseminate new use information must agree to submit a supplement for that use within a specified period of time, unless a supplemental application already has been submitted or FDA has exempted the manufacturer from the requirement to submit a supplement. The proposal also would provide for requests to extend the time period for submitting a supplement for a new use, and it would describe how a manufacturer can seek an exemption from the requirement to submit a supplement. Additionally, the proposal would discuss FDA actions in response to manufacturer's submissions, corrective actions that FDA may take, and recordkeeping and reporting requirements.     

Regulating motor vehicle safety maintenance: can we make it cost-effective?

Our analysis suggests that a properly designed and implemented safety inspection program for motor vehicles would probably produce benefits in excess of costs, whereas most existing state programs probably produce costs well in excess of benefits. That these findings are somewhat inconclusive is both regrettable and unnecessary: the data required to carry out a satisfactory evaluation of alternative safety inspection program designs are obtainable. Unfortunately, serious policy-relevant empirical research is costly; for that reason, more conclusive findings may never be available.     

Vehicle remote keyless entry systems and engine immobilisers: Do not believe the insurer that this technology is perfect

In the 1990s, governments put pressure on motor vehicle manufacturers to provide better security for vehicles. Thieves could steal cars and lorries with relative ease. The manufacturers responded by introducing electronic systems to make it more difficult for vehicles to be stolen without the key. However, as with most forms of technology, the software can be bypassed. In recent years, thieves have manipulated weaknesses in the technology, so that vehicles can be stolen without the key.     

The conundrum of charitability: reassessing tax exemption for hospitals

Tax exemption is an ancient, honorable and expensive tradition. Tax exemption for hospitals is all of these three, but it also places in sharp focus a fundamental problem with tax exemption in general. Organizations can retain their tax exemption while changing circumstances or expectations undermine the rationale that led to the exemption in the first place. Hospitals are perhaps the best example of this problem. The dramatic changes in the health care environment have eliminated most of the characteristics of a hospital that originally persuaded the citizenry to grant it an exemption. Hospitals have entered into competition with tax-paying businesses, and have increasingly behaved like competitive actors. Such conduct may well be beneficial, but it does not follow that tax exemption is appropriate. Rather than an undifferentiated subsidy, a shift to focused goals will provide charitable hospitals with the opportunity and incentive to "do the right thing."     

The failure of community benefit

Though proponents of tax exemption for health care providers continue to extol the virtues of the community-benefit test, Part II of this article illustrates that the train pretty much has already left the station on this front. Both the federal government and the states increasingly look to uncompensated care as the touchstone of exemption for health care providers. To a great extent, this transition back to a "relief of the poor" standard for exemption is the result of the inherent lack of precision in community benefit standards, along with the general trend of empirical evidence that nonprofit health care providers behave similarly to their for-profit counterparts. Faced with this situation, federal and state policymakers naturally have focused on charity care as the one quantifiable behavioral difference to justify exemption. Nevertheless, some empirical evidence suggests that nonprofits may engage in socially desirable behavior other than simply free care for the poor, and the arguments that a mixed ownership system provides the best overall health care model cannot be dismissed out of hand. Thus, despite my past criticisms of the community benefit formulation, I have come to the view that we should seriously consider the options available beyond complete repeal of the community benefit test or a return to a strict charity-care exemption standard. I continue to believe that we should demand a fairly high level of "accountability" from exemption, however, and that exemption should have some direct causal connection to whatever socially-desirable behavior we are seeking. While one option along these lines is to adopt Nina Crimm's approach of rewarding specific behaviors through a deduction or credit system, using "enhancing access" as a test of exemption may provide the best combination of flexibility and verifiable behavioral differences to support continued exemption for health care providers.     

小议欧盟第1419/2006号条例对班轮航运业的影响

国际航运反垄断豁免制度作为一种行业豁免制度,是指通过立法赋予航运业中具有垄断性质的行为以反垄断豁免,它是一般反垄断豁免在国际航运业的体现。目前各航运发达国家,如美国、加拿大等,都在法律中确定了有关反垄断法在国际航运领域的适用例外。2006年9月欧盟竞争委员会颁布了旨在取消班轮公会反垄断豁免的第1419/2006号条例。从班轮市场集中度、市场运力、市场运价、市场竞争力等方面,分析该条例对包括中国在内的各利益相关方的影响,指出该条例的生效仍将延续班轮航运业的垄断态势。