The status of human cloning in the international setting]

The General Assembly of the United Nations submitted a Declaration on Human Cloning in March 2005. The text of such Declaration was the result of a difficult and long process, taking more than three years. Being a Declaration instead of a Resolution, it has not legal capability in inforcing United Nations members to act according to its recommendations. This article begins with an explanation of several terms referred to cloning. Different countries' legislation on cloning is analyzed. Positions of the same countries at the Convention of the United Nations are as well analyzed. Comparing both countries' views shows that national legislation on cloning is independent and orientated by some countries' particular interests and biological and ethical views on these issues. Future developments on human cloning and its applications will be shared among all countries, both the ones currently allowing and supporting "therapeutic" cloning and the ones now banning it. In such case, it would be important to reach agreements on these issues at an international level. The article discusses possible legislative developments and offers some proposals to reach such agreements.     

The legal question of the obtention of human stem cells for biomedical research. Legislation policy considerations]

The future Law on Biomedical Research, whose draft bill has been approved by the Council of Ministers and that will soon begin its parliamentary process of approval, will regulate, among other matters, the research with embryos. Likewise, it will make a pronouncement on the so-called therapeutic cloning. This report makes a detailed analysis of different matters that must be borne in mind by the legislator in order to face the process of evaluation and approval of said Law in relation with the aforementioned matters. It makes a special analysis of the legal texts of an international nature to which Spain is unavoidably subjected to, in such a way that the legislative text that will finally be approved is not contrary to the dispositions that are within such.     

Regulating (for the benefit of) future persons: a different perspective on the FDA's jurisdiction to regulate human reproductive cloning

The Food and Drug Administration (FDA) has taken the position that human reproductive cloning falls within its regulatory jurisdiction. This position has been subject to criticism on both procedural and substantive grounds. Some have contended that the FDA has failed to follow administrative law principles in asserting its jurisdiction, while others claim the FDA is ill suited to the task of addressing the ethical and social implications of human cloning. This Article argues, that, notwithstanding these criticisms, the FDA could plausibly assert jurisdiction over human cloning as a form of human gene therapy, an area in which the FDA is already regarded as having primary regulatory authority. Such an assertion would require that the FDA's jurisdiction extend to products affecting future persons, i.e., those not yet born. This Article demonstrates, for the first time, that such jurisdiction was implicit in the enactment of the 1962 Kefauver-Harris Amendments to the Federal Food, Drug, and Cosmetic Act and that the FDA has historically relied on such authority in promulgating regulations for drugs and devices.     

“克隆人”带来的生育权问题

随着科学技术的不断发展,从自然生育到人工生育再到克隆人,生育经历了一个不断发展变化的过程.本文分析了各国关于克隆人的立法情况及克隆人的伦理道德问题,就克隆人的家庭问题以及克隆人受歧视等问题进行了初步探讨.     

人类克隆技术的专利保护

随着生物技术特别是克隆技术的发展,人类克隆技术是否受到专利法的保护成为备受人们关注的问题。由于人 类克隆技术涉及到人类伦理道德和公序良俗等问题,现在许多国家都把此类技术排除在专利保护之外。但是,人 类克隆技术不等于克隆人的技术,克隆也不等同于生殖性克隆,不加区分地禁止人类克隆技术是不利于克隆技术 发展的。况且,本质上来说反对克隆人不是专利法的任务。我们应该尽快制定关于禁止生殖性克隆的法律,而对 于其他的人类克隆技术则可以毫无阻碍地获得专利保护,这样既可以保护社会和公众的利益,又可以推动克隆技 术的更快发展。     

Harmonizing the international regulation of embryonic stem cell research: possibilities, promises and potential pitfalls

Despite near unanimous global opposition to human reproductive cloning, the United Nations has been unable to reach a consensus as to how cloning practices should be regulated at the international level. As a result, the U.N. objective of establishing binding international regulations governing cloning and stem cell research has yet to be achieved. Given the lack of consensus that exists within the global community on this topic, it seems that any attempt to harmonize the international regulation of cloning and stem cell science will face important obstacles. This paper seeks to illuminate the particular challenges to harmonizing international laws and policies related to stem cell research and human cloning, and to investigate potential methods for overcoming these challenges. By drawing on two other areas in which regulatory harmonization has been attempted, namely: environmental and human safety aspects of international trade, and pharmaceutical research and development, we study approaches to global regulatory harmonization. We conclude that while the challenges to harmonization are diverse and important, so too are the benefits of establishing uniformity in approaches to stem cell research worldwide. This paper proposes a model for harmonizing the regulation of stem cell research that focuses on broader norms and principles rather than specific rules. It further recommends that such harmonization should occur through a process initiated and developed by an independent international agency marked by diversity, both in terms of the cultural identities and perspectives represented, and the interdisciplinary expertise of its members.     

刑法学视域下的克隆人及其立法

克隆人是现代生命科技发展带给人类社会的一个挑战。从技术应用的目的上看,克隆可以被划分为治疗性克隆与生殖性克隆。在有关克隆人是否具有犯罪性以及刑法应否禁止克隆人的问题上,存在着"肯定论"与"否定论"两种截然相反的观点。站在刑法的视域下,生殖性克隆人是一种完全不同于治疗性克隆人的行为,它无法摆脱伦理上的非难性,已经超出了社会可承受的范围,其本质是一种反社会的犯罪行为,对于这种行为,刑法应当将其入罪化,并配设适宜的刑事责任。当前我国现行立法中已经对生殖性克隆人作出了明令禁止,但却未就从事生殖性克隆人研究的刑事责任作出任何规定,也未出台有关克隆技术规范的专门立法。为此,需要制定一部《克隆技术管理法》,并修改现行刑法的规定,增设"非法从事生殖性人体克隆研究罪"。     

No end in sight to cloning debate.

Since last August, Great Britain has allowed the cloning for research purposes. This fact has re-generated an existing debate, taking into account the prohibition of cloning of the UN, the States are debating whether cloning should be prohibited or in the contrary, it should also be admitted for reproductive purposes. This situation has generated an international uneasiness due to the lack of a universal consensus. This article analyses this situation, bringing the reader closer to the very controversial texts, such as the European Constitution and the UN Convention on Cloning.     

论法律文本及其公布

法律文本是通过文字表达立法者意图的产物,是法治国家建立法治秩序的直接甚至惟一的依据。文本的基本要求是惟一性以及文字的清晰和严谨。在法律形成的过程中,对于法律文本中的错误,可以根据立法过程的不同阶段,以不同的方式进行修订、解释和修改。我国《宪法》和《立法法》对法律文本及其公布的规定比较简单,需要针对文本形成和公布的不同的阶段加以明确和完善。其内容包括:第一,在国家主席签署前,法律文本应当由立法机关自行撤回勘误处理或修改后按表决文本重新表决处理;第二,在国家主席签署以后,法律文本仅仅涉及一般性的文字的勘误由立法机关通过勘误程序进行修改,涉及对法条意思修改的则需要通过法律修改程序进行修改;第三,媒体公布必须要等权威机关签署公布后才能发布;第四,法律的标准文本公布后,还没有实施的,应当根据法律修改的程序进行。     

论期待可能性理论的合理性——基于言伴语境理论的考察

只有在特定语境下才能达成对文本的理解和解释，言伴语境对意义生成具有重要作用。法律解释的言伴语境是当下案件事实。法官处理案件时在其前见的指引下根据法律规定选择、建构案件事实，根据案件事实赋予法律文本以语用意义，并且在语境和文本、案件事实和法律文本之间的多次循环往复中实现解释者和文本的视域融合，使法律文本的意义不断丰富和完善。刑法未规定期待可能性，但对其适用体现了言伴语境对文本意义的作用，因而其存在具有合理性。适用该理论不会打破法律的安定性和灵活性之间的平衡，法官因此而行使自由裁量权不违背现代法治精神。     

民办学校“合理回报”之争的私法破解

立法文本的逻辑解析表明，民办学校合理回报之争并非是一个纯粹的公法问题，其症结在于混淆了公益性和非公益性、营利性和非营利性两对分属公法和私法的范畴。《民办教育促进法》试图用“合理回报”的含混表述来达致法律逻辑和社会现实之间的平衡，反使得“合理回报”在社会生活中陷入既不合理又不合法的尴尬场景。     

Thinking about cloning: a reply to Judith Thomson

Opponents of human cloning typically argue for the prohibition of therapeutic cloning and a permanent prohibition of reproductive cloning, even if a safe cloning technology should become available. In a recent article in this journal, "Legal and Ethical Problems of Human Cloning" (2000) 8 JLM 31, Judith Thomson develops an ethico-legal analysis that would justify prohibitions or restrictions on both therapeutic and reproductive cloning, irrespective of any safety issue. This article criticises Thomson's analysis in detail and suggests, in particular, that it relies upon an intellectually unacceptable understanding of personhood.     

从能指到所指?——文学翻译个案研究

在文学文本的阐释中,语言的解码对于译者而言具有不同于读者的特殊性,译者往往专注于原语文本———目的语文本的深层解码———编码,而忽略目的语文本的表层编码,正是这后一个缺项,压缩了目的语读者应有的解码空间。因而,译者在面临以能指为特征的文本时,应尽量再现目的语文本能指的指涉空间,即还能指以能指。     

法治反对解释的原则

反对解释是法治初级阶段的一个重要原则.这一原则要求法官奉行司法克制主义,对明确的法律条文必须无条件遵守,在解释中不能附加法官个人的意思.反对解释不是说不要解释,而是说不能过度解释,法官只能行使有限的创造权力,对法律文本已明确的含义,法官的解释就是认同.在我国,由于长期以来一直批判法家的严苛,主张判决中天理、人情与法律的和谐相处,结果使得法律文本被置于不重要的地位.严格执法实际上没有成为我们的执法理念,法律被任意解释、曲解的现象大量发生.严格法制是我们不能逾越的阶段,反对解释的原则应是司法活动的重要原则.     

Semiotics and the Spectacle of Transformation in Copyright Law

Copyright law is often premised on the identification of an author of a literary, dramatic, musical, or artistic work, and then giving this author exclusive rights for a limited period to control the commercial exploitation of his or her intellectual creation. However, the hegemonic modernist position of the romantic authorial text has been challenged by numerous scholars who have argued that the meaning of a text lies not in its origin but in its destination. Roland Barthes’ work, controversial at the time of publication with its assault on modernity and the primacy of authorial control, has nonetheless laid the groundwork for an important body of scholarship on interpretive communities. Whether one adopts the position of neoconservative postmodernism or poststructural postmodernism, this article argues that a semiotic analysis of works of copyright as “signs”, “myths” and “polysemous texts” will nonetheless offer an important framework to understand the full reach of the transformative use doctrine in the United States today.     

Legal aspects of text mining

“Text mining” covers a range of techniques that allow software to extract information from text documents. It is not a new technology, but it has recently received spotlight attention due to the emergence of Big Data. The applications of text mining are very diverse and span multiple disciplines, ranging from biomedicine to legal, business intelligence and security. From a legal perspective, text mining touches upon several areas of law, including contract law, copyright law and database law. This contribution discusses the legal issues encountered during the assembly of texts into so-called “corpora”, as well as the use of such corpora.     

The inadequacies of absolute prohibition of reproductive cloning

This study reviews debates on human cloning and its benefits, considers international and domestic laws, and argues that the choice of reproductive means is a human right. In exercise of this right, a balanced approach should be adopted, in order to benefit human society while protecting human dignity adequately. The immaturity of cloning techniques indicates that at the present time human reproductive cloning is too risky. Thus a temporary ban on such cloning is appropriate, but the ban on relevant scientific research and animal experimentation is inappropriate as it denies the spirit of freedom of scientific inquiry, and hinders making the benefits of scientific advancement available to human society as a whole.     

Digital forensic text string searching: Improving information retrieval effectiveness by thematically clustering search results

Current digital forensic text string search tools use match and/or indexing algorithms to search digital evidence at the physical level to locate specific text strings. They are designed to achieve 100% query recall (i.e. find all instances of the text strings). Given the nature of the data set, this leads to an extremely high incidence of hits that are not relevant to investigative objectives. Although Internet search engines suffer similarly, they employ ranking algorithms to present the search results in a more effective and efficient manner from the user's perspective. Current digital forensic text string search tools fail to group and/or order search hits in a manner that appreciably improves the investigator's ability to get to the relevant hits first (or at least more quickly). This research proposes and empirically tests the feasibility and utility of post-retrieval clustering of digital forensic text string search results – specifically by using Kohonen Self-Organizing Maps, a self-organizing neural network approach.This paper is presented as a work-in-progress. A working tool has been developed and experimentation has begun. Findings regarding the feasibility and utility of the proposed approach will be presented at DFRWS 2007, as well as suggestions for follow-on research.     

Narrating Sāṃkhya Philosophy: Bhīṣma,Janaka and Pañcaśikha at <Emphasis Type="Italic">Mahābhārata</Emphasis> 12.211–12

The account of the conversation between King Janaka and the ??i Pañca?ikha on the fate of the individual after death is one of the philosophical texts that are included in the Mok?adharmaparvan of the Mahābhārata. There are different scholarly views on the history and composition of the text as well as the philosophical teachings propagated by Pañca?ikha. In contrast to earlier studies this paper not only analyzes the whole text, but also pays attention to the narrative framework in which the philosophical discourse is embedded. In the text Bhī?ma functions as an external narrator, who relates and interprets the conversation as well as characterizes the protagonists and thereby influences the ways in which text is received by the audience. It is argued that it is important to deal with the interplay between the narrative and the philosophical discourse that is narrated, when analysing the philosophical positions that are either refuted or accepted in the text. 12.211–12 is not only a philosophical text, but also a tale about philosophical discourse in general and about how Sā?khya philosophy is taught to a non-expert audience. Seen from this perspective the text is significant for the way in which philosophical terms and issues are dealt with in the epic and adjacent non-expert texts, such as the Purā?as.