连选连任:企业家成长的制度障碍

企业家连选连任不利于经营能力的提高,导致人才断层,企业家缺乏,许多企业家退化变质。废除连选连任制度,要破除优秀者连任的错误价值观,建立竞选、培训、任职周期循环体系。     

Sowing seeds of change for the digital world – A response to ‘Digital opportunity: A review of intellectual property and growth’

Professor Ian Hargreaves released his independent report entitled Digital Opportunity – A Review of Intellectual Property and Growth on 18 May 2011. Hargreaves advocates strategic change and policy initiatives for the intellectual property framework in both national and international contexts. Ten recommendations are proposed, including reform of copyright licencing procedures, implementation of a digital copyright exchange, and legislative exceptions to copyright infringement, along with restructuring of systems for the grant and enforcement of patents. In this article, the authors discuss Hargreaves’ recommendations and consider how intellectual property law and policy may be used to facilitate innovation and economic growth in the modern digital world.     

To block or not to block: European approaches to content regulation,and implications for freedom of expression

Based on the limited effectiveness of state laws, and lack of harmonization at international level a number of states started to introduce policies to block access to Internet content and websites deemed illegal which are situated outside their legal jurisdiction. However, blocking policies are not always subject to due process principles, decisions are not necessarily taken by the courts of law, and often administrative bodies or Internet hotlines run by the private sector decide which content or website should be subject to blocking. Therefore, increasingly, the compatibility of blocking action is questioned with regards to the fundamental right of freedom of expression. This article assesses significant developments at the pan-European level with regards to the development, and implementation of Internet content blocking policies. Adaptation of content blocking policies from certain member states of both the European Union and the Council of Europe will be used to assess the nature and implementation of access blocking policies. It will be argued that there could be a breach of Article 10 of the European Convention on Human Rights if blocking measures or filtering tools are used at state level to silence politically motivated speech on the Internet.     

Banking in a theory of the business cycle: a model and critique of the Basle Accord on risk-based capital requirements for banks

This paper presents a theoretical framework for understanding the investment decisions and financing decisions of financial and non-financial enterprises over the business cycle. At the core of this theoretical framework is an agency problem between relatively more risk averse depositor/bondholders and relatively less risk averse stockholders. The solution to this agency problem is a corporate governance system that takes the form of an up-front contract that directs managers to make portfolio/investment decisions in the interest of their stockholders, and financing decisions in the interest of their depositor/bondholders. This enables depositor/bondholders to offset any risk shifting portfolio/investment decisions made on behalf of the shareholders thereby mitigating the moral hazard problem among debtors and creditors. The Basle Accord on risk-based capital requirements for depository institutions is one particular regulatory application of this more general theoretical framework. The paper concludes with a comparison between the Basle Accord and the 100% reserve or narrow banking proposal as the means of achieving a risk-free medium of exchange and a financial system that facilitates the optimal transfer of resources from savers to investors consistent with society’s aversion towards risk.     

从“自由意志”到“社会利益”——民法制度变迁的法哲学解读

康德的“自由意志”理论是传统民法哲学的基础。“自由意志”以“自主决定”与“自己责任”为原则 ,并衍生出近代民法的三大原则以及逻辑严密、体系完备、内容浩瀚的民法体系。但是 ,“自由意志”论在理论上与现实上都遭遇到了困境 ,民法制度随时代而变迁。庞德的“社会利益”学说是解说这种变迁的有力理论。依据庞德的理论 ,民法从专注于个人自然权利转向兼顾社会利益 ,民法价值出现了从个人自由到保护信赖的变化 ,民法的终极目的也出现了从人格的健全与发展转向社会秩序的和谐 ,并实现在人们需求冲突时的调整的变化。现代民法的内在体系因之形成以“自由意志”为内容的“常规法”和以“信赖保护”为内容的“矫正法”的二元结构。     

Back to first principles: a new model for the regulation of drug promotion

The US Food and Drug Administration''s (‘FDA’ or the ‘Agency’) current regulatory framework for drug promotion, by significantly restricting the ability of drug manufacturers to communicate important, accurate, up-to-date scientific information about their products that is truthful and non-misleading, runs afoul of the First Amendment and actually runs counter to the Agency''s public health mission. Our article proposes a New Model that represents an initial proposal for a modern, sustainable regulatory framework that comprehensively addresses drug promotion while protecting the public health, protecting manufacturers’ First Amendment rights, establishing clear and understandable rules, and maintaining the integrity of the FDA approval process. The New Model would create three categories of manufacturer communications—(1) Scientific Exchange and Other Exempt Communications, (2) Non-Core Communications, and (3) Core Communications—that would be regulated consistent with the First Amendment and according to the strength of the government''s interest in regulating the specific communications included within each category. The New Model should address the FDA''s concerns related to off-label speech while protecting drug manufacturers’ freedom to engage in truthful and non-misleading communications about their products.     

MCMI Results for Batterers: A Response to Gondolf

Gondolph [Gondolf, E. W. (1999). J. Fam. Violence 14: 1–17] recently published MCMI-III results on men in batterer treatment groups that appeared to indicate much lower levels of psychopathology than previous studies. Gondolph concluded from these results that the existence of an abusive personality was debatable. Gondolph is mistaken in drawing conclusions about the abusive personality based solely on MCMI results. The assessment of the abusive personality is not based on this instrument. Also, respondents in Gondolph's study had extremely high Desirability scores on the MCMI-III, so even his estimates of the incidence of personality disorder are questionable. Current assessment of personality disorder has begun to steer away from self-report instruments such as the MCMI-III; this practice should be utilized in assessing batterers.     

The maharishi effect: A model for social improvement. Time series analysis of a phase transition to reduced crime in merseyside metropolitan area

Abstract

Time series analysis was used to test the hypothesis that Merseyside crime rate was reduced by a group practising Maharishi Mahesh Yogi's Transcendental Meditation and TM-Sidhi programme. Previous research suggests that a phase transition to increased orderliness u evidenced by reduced crime rate should occur when the group size approaches the square root of 1% of the total population. Analysis of Merseyside monthly crime data and coherence group size from 1978 to 1991 shows that a phase transition occurred during March 1988 with a 13.4% drop in crime when the group size first exceeded the √1 % or Maharishi Effect threshold (p < 0.00006). Up to 1992, Merseyside crime rate has remained steady in contrast to the national crime rate which has increased by 45%. In 1987 Merseyside had the third highest rime rate of the eleven largest Metropolitan Areas in England and Wales; by 1992 it had the lowest crime rate. 40% below levels predicted by the previous behaviour of the series. There were 255,000 less crimes in Merseyside from 1988 to 1992 than would have been expected had Merseyside continued to follow the national crime trend. Home Office figures indicate savings to Merseyside could exceed £1250 million for the five year period. Demographic changes, economic variables, police practice, and other factors could not account for the changes.     

Bargaining for justice: A means to resolve competing justice claims

In many types of social situations, individuals defend their claims to a portion of the rewards by arguing that they are just. Although a great deal of research demonstrates that individuals differ in their distribution preferences and thus their beliefs about what is fair, the literature curiously omits consideration of the consequences of these differences, especially the conflict they may engender. This paper first reviews the few attempts to address such justice conflict. The limitations of these approaches suggest concerns to be addressed in an alternative framework. The paper presents a theoretical discussion of this alternative that integrates assumptions about distribution preferences, justice beliefs, conditions fostering the emergence of justice conflict, and elements of negotiation processes as a basic framework for predictions about the bargaining strategies individuals may employ to resolve competing justice claims.     

BrowStEx: A tool to aggregate browser storage artifacts for forensic analysis

Web storage or browser storage, a new client-side data storage feature, was recommended as a part of the HTML5 specifications and now widely adopted by major web browser vendors. Web storage with native browser support has changed the paradigm of web application development unprecedentedly because persistent data storage with increased data size can be realized on the client. Web storage is poised to quickly become an area of particular interest for forensic investigators due to the potential to discover critical information from web browser artifacts at client side. However, the literature work on web browser forensics has traditionally focused on browsing history, browser cache, and cookie files (Oh et al., 2011). Therefore, we first discuss the prevalence of web storage implementation in widely used websites. Then, we compare and contrast the web storage technology currently implemented in the five major web browsers, Google Chrome, Internet Explorer, Mozilla Firefox, Opera, and Apple's Safari. Moreover, in order to provide more insights into web storage and enable unified forensic analysis, a proof-of-concept tool, named as BrowStEx (Browser Storage Extractor), is described with implementation details. The commonalities, differences, and the proof-of-concept tool discussed in this paper can be useful in developing advanced forensic tools that can extract browser storage artifacts.     

A 14- to 24-year longitudinal study of a comprehensive sexual health model treatment program for adolescent sex offenders: predictors of successful completion and subsequent criminal recidivism

The study determines the effectiveness of a sexuality-positive adolescent sexual offender treatment program and examines subsequent criminal recidivism in the three outcome groups (completed, withdrawn, referred). The sample consists of 122 adolescent males and their families (491 individuals). Of the demographic variables, only living situation was significant, such that patients living with parents were more likely to graduate. None of the behavioral variables were found to be significant. Of the treatment variables, length of time in the program and participation in the Family Journey Seminar were included in the final model. When they were included in the model, no other treatment variable were significantly related to probability of graduation. There were no arrests or convictions for sex-related crimes in the population of participants that successfully completed the program. This group was also less likely than the other groups to be arrested (p = 0.014) or convicted (p = 0.004) across all crime categories.     

The testosterone–cortisol ratio: A hormonal marker for proneness to social aggression

Social aggression is an escalating hazard for individuals and society. It is most frequently observed as impulsive–reactive aggression in antisocial personality disorder (APD), but in psychopathic aggressive personalities instrumental social aggression is more prominent. However, the psychobiological mechanisms underlying human social aggression are still poorly understood. Here we propose a psychobiological mechanism that may explain human social aggression wherein the steroid hormones cortisol and testosterone play a critical role. High levels of testosterone and low levels of cortisol have been associated with social aggression in several species but it seems that in those individuals wherein these hormonal markers combine social aggression is most violent. In this review we discuss fundamental and clinical research which underscores the potential of the testosterone–cortisol ratio as a possible marker for criminal aggressive tendencies.     

The European Trips-Plus Model and The Arab World: From Co-Operation to Association— A New Era in the Global IPRS Regime?

The advocation of stronger and higher levels of Intellectual Property Rights (IPRs) protection has been on the rise in recent years, particularly since the establishment of the World Trade Organisation (WTO) in 1995. Although its establishment signalled the beginning of a new phase in the protection of IPRs internationally, no more than a decade later, it is seen that such a regime is still undergoing a number of significant changes. In this regard, the rise of bilateralism and the retreat of multilateralism resulted in the so-called ‹TRIPS-Plus’ recipe in which developing countries are increasingly giving way to the demands of the industrialised countries through incorporating higher levels of IPRs protection domestically. Although the USA has often been viewed as the primary advocator and enforcer of the TRIPS-Plus recipe globally, this article shows that in fact the European Union (EU) advocated the TRIPS-Plus recipe long before the USA. Thus, this article discusses the case of the European TRIPS-Plus model with the Arab World as a clear demonstration of such a trend. Developing and Arab countries are now faced with two determined superpowers acting at both the unilateral and bilateral levels to achieve their desired higher standards of IPRs protection worldwide. This will further erode the flexibilities of the TRIPS Agreement, and will entail grave repercussions for both the developing and Arab countries. LLM, PhD, Lecturer in Law, University of Central Lancashire (UCLAN), UK. The author may be contacted at mel-said@uclan.ac.uk     

为自己作证的权利及其真实义务——论英美法被告人作证权制度及其对大陆法系的影响

被告人作证权制度是英美法特有的一项制度,是在十九世纪中期边沁功利主义思想影响下确立的。在英美法国家,被告人如果要在法庭上陈述事实就要像其他证人一样,走上证人席,宣誓作证。被告人作证时不受不得强迫自证己罪原则的保护,对控辩双方的提问必须如实回答,故意虚假陈述将构成伪证罪。二战之后,部分大陆法国家或地区在改造职权主义庭审方式时,都不约而同地借鉴了被告人作证权制度,形成了相对独特的调查被告人程序。我国也不例外。但我国的调查被告人程序不符合无罪推定原则、控辩平等对抗原则和证明责任分配原则的精神,有待进一步的完善。     

夫妻一方对他方自杀而“见死不救”之刑事责任新探——从“宋福祥故意杀人案”之判决理由谈起

"罪刑法定原则"与"罪刑相适应原则"已经成为我国刑法的基本原则。"宋福祥故意杀人案"之判决理由欠缺合理性与合法性,夫妻一方对他方自杀而"见死不救"的不应当承担刑事责任。在刑事审判中,法官应"以事实为根据,以法律为准绳",以作出正当的个案裁判为己任,在审判中真正做到符合"罪刑法定原则"与"罪刑相适应原则",才能切实保障公民的合法权益,维护社会的和谐稳定,也才能真正实现依法治国。     

Severe Hypokalemia due to Combination Use of Dexamethasone and Calcium Gluconate for Diabetics with Infection: A Case Report

The combination use of dexamethasone and calcium gluconate can be applied to hypersensitiv-ity. Severe hypokalemia is a usual complication of dexamethasone and calcium gluconate therapy, whichoccurs frequently with therapeutic use. Fatal cases, accidental and intentional, occur frequently in forensicpractice. The current case report presented a 43-year-old man with diabetes mellitus with infection, towhom dexamethasone and calcium gluconate were administered in the private clinic. With the develop-ment of such clinical symptoms of severe hypokalemia as quadriplegia, he was confirmed to have severehypokalemia through a biochemical test before dying of arrhythmia. And also it presented pathophysio-logic mechanism underlying severe hypokalemia as well as suggestions for clinical practice regardingcombination use of dexamethasone and calcium gluconate.     

论无期徒刑减刑后的假释考验期限——一个合理性解释

《刑法》没有规定无期徒刑减为有期徒刑后实际执行的最低刑期,也没有规定无期徒刑减为有期徒刑后的假释考验期限。对于前一个漏洞,已经通过司法解释弥补,但后一个漏洞依然存在。我国在减刑制度的立法技术上缺乏对国外经验的比较借鉴;司法实践中假释适用率过低;对假释本质的“恩惠说”认识导致假释条文虚置化;惩罚哲学上长期偏重罪犯的监狱内改造而轻视、忽视非监禁刑改造等,既是漏洞出现的原因,也是漏洞不被发现的原因。面对有权解释的缺位,可以根据合理解释原则,对这一漏洞给出不明显违背常识、常理、常情的学理解答。     

United States' and Australian principles on internet jurisdiction: A case for Australia to consider United States' hegemony on jurisdiction

The United States and Australia have been facing the issue of internet jurisdiction. The United States is an epitome of a country that has considered the challenges posed by the internet to the traditional law. It has developed its own tests to help resolve the issue, which have evolved over time and in comparison with other jurisdictions, and it has been successful. Conversely, the Australian legal system is in a stage of infancy regarding such challenges and has developed its own approach. This paper focuses on the anomalies between the United States' and Australian principles or approaches to internet jurisdiction by analysing and discussing the three leading cases that are benchmarks in the respective jurisdictions. Finding the fundamental difference between the two approaches, the paper elucidates the United States hegemony on internet jurisdiction by comparing the shortcomings of the respective cases. Finally, this paper makes a case for the Australian courts to consider an approach based on the one practised by the United States courts to tackle the ever-evolving issue of internet jurisdiction.     

从松花江污染事故看跨界污染损害赔偿问题的解决途径

假定松花江污染事故造成了跨界污染损害,就有了如何对待跨界污染损害赔偿的问题。在这个问题上,有国家赔偿、国际民事赔偿以及外交谈判和协商三种基本的方式。基于法律解决国家赔偿和国际民事赔偿的选择不是最佳的,基于外交解决的谈判与协商应是中俄双方应当采取的妥善的解决办法。     

Learning to be A Peacemaking Lawyer: Law Student Perspectives on Building Peacemaking into Law School Curricula,Building Paths to Practice for New Lawyers,and Interdisciplinary Training

From our perspectives as students, we reflect on the teachings of Lawyer as Peacemaker, a Winter 2015 course taught at UCLA School of Law — the school's course devoted to peacemaking lawyering. Utilizing our newfound peacemaking worldview, we share our collective reactions to the Lawyer as Peacemaker course and the ten articles in the Family Court Review Special Issue on Peacemaking for Divorcing Families. We then advocate for integrating peacemaking into law school curricula and experiential learning offerings and make recommendations on how law schools today can prepare students to practice peace.

Key Points for the Family Court Community:
• This article is a collaborative work product of three students who come from an array of work experience, backgrounds and interests and from their newly founded peacemaking worldview, the three students collaboratively analyzed ideas presented in the Lawyer as Peacemaker course and the articles from this issue.
• The peacemaking mediation allows the parties more control over their legal disputes and allows the control of the costs that come with litigation.
• Peacemaking involves a holistic and collaborative method, involving mental health professionals to financial advisors as well as legal professionals.
• However, peacemaking skill courses are not readily available to many law students while studying in law school.
• This valuable asset should be made available more extensively to law students interested in family law.