国家赔偿制度的成长及其发展趋势

资本主义制度在西欧建立以后的一个相当长的历史时期没有形成国家赔偿理念.直到20世纪上半叶,国家赔偿理念才普遍得以确立.这与西方市场经济扩张、民主政治发展、人权保障意识兴起以及普遍福利国家政策的实施密切相关.随着国家赔偿理念的成长,国家赔偿责任开始宪法化和制度化,赔偿程序呈现出理性化的特点,赔偿范围也随着人权价值的普遍确立呈日益扩大化的趋势.我们应该理性认识国家赔偿理念和制度架构的共同规律以及各国有关具体规范设计与适用方面的不同点,完善我国的国家赔偿制度.     

The use of medical examinations for employment purposes

This article examines a number of legal issues which arise where medical examinations or tests are used in the employment context, either to test the suitability of a prospective employee in pre-employment situations or to ascertain the fitness of existing employees. Employer justifications for seeking medical information usually relate to attempts to comply with health and safety legislation and to reduce workers compensation costs. This article discusses the legal obligations involved in pre-employment medical testing and, in particular, employee obligations to provide correct information in relation to their health to a prospective employer. It also notes the consequences for employees of providing false information in relation to workers compensation claims and dismissal cases. The article notes the growing trend of requiring drug and alcohol testing for existing employees, particularly in the mining industry. The article concludes by noting that employers need to take care in seeking medical information, and that it should not simply be done as a mechanical, matter-of-course exercise. Failure to observe anti-discrimination laws may result in the employer facing allegations of misuse of medical information and claims for damages for discrimination.     

Legal Professionals and Development Strategies: Corporate Lawyers and the Construction of the Telecoms Sector in Brazil (1980s–2010s)

This study explores the role of corporate lawyers in the construction and operation of a key area of the Brazilian economy over a thirty‐year period. It looks at three periods in the history of the Brazilian telecoms sector: the fall of state monopoly; global restructuring, neoliberalism, and privatization; and the recent resurgence of state activism. In the first two periods, lawyers worked to facilitate privatization and to create a lightly regulated market for telecoms services that attracted foreign capital. Things changed, however, when the industry was faced with new industrial and social policies. In this period, lawyers oscillated between resisting government intrusion and negotiating engagement with regulators. This sequence of events encompasses changes in the field of state power, hierarchies in the legal profession, and core‐periphery relations, which invite new syntheses of existing theoretical traditions about law, lawyers, and capitalist development in emerging economies.     

工伤补偿制度:起源、问题与解决

社会化的工伤保险制度系因应工业社会中频发的工伤而产生,在一些国家是工伤补偿以禁止劳动者对雇主请求民事侵权赔偿为前提的,除第三人侵权情形外,我国亦是如此.但工伤补偿和民事侵权赔偿的差异,导致了两个方面的问题:劳动者无法获得充分赔偿和雇主对安全问题的懈怠,这要求工伤补偿与民事侵权赔偿之间的制度衔接.工伤补偿制度仅应适用于无过错责任,在雇主存在过错的情况下,应赋予劳动者独立的民事侵权责任求偿权,确立过错责任和无过错责任之间补充的关系.     

环境损害赔偿与公益信托——以福岛核事故为中心

福岛核辐射事故造成包括森林、海洋、湖泊、地下水等的环境损害,其中,有些是私人受到了损害,有些是社会受到了损害。这些损害应该如何赔偿?特别是自然资源价值的赔偿是问题的难点所在,比如自然资源之森林,交换价值的赔偿应归属于所有人,其非使用价值则应归属于公众。因此,非使用价值则应赔偿给公众。但是,如何归属呢?对此,宜采用公益信托理念,由国家或地方政府作为受托人,为了社会整体享有利益,请求赔偿。而赔偿方式也是一个重要问题,一般有恢复原状、金钱赔偿两种,一般计算出的环境价值减少部分低于恢复原状的费用,但如果能准确计算出全部自然资源价值,环境价值减少部分与恢复原状的费用基本上相同。因此,公益受托人可以选择任何一种适于该情形的赔偿。     

Bringing science to life in Australia: the need for a new approach in human health biotechnology policy

This paper discusses the development of the biotechnology industry in the context of Australia’s industrial and policy structure. The paper outlines the size and structure and ‘stage’ of development of the biotechnology sector in Australia and argues for a policy approach that recognises the specific dynamics of the industry sector as it presently stands. It argues that government in a small country with a patchy industrial structure and where the local market is highly regulated and dominated by public sector institutions must play a central but more sophisticated policy role in the development of effective mechanisms for both knowledge generation and transfer in the emerging biomedical sciences.     

AIDS drugs & the pharmaceutical industry: a need for reform.

The pharmaceutical industry has long enjoyed substantial profits despite increased requirements for drug approval and various attempts to regulate the industry. Drug companies have avoided effective regulation by blaming high prices on the costs of research and development. The search for drugs effective in combatting HIV and AIDS related illnesses has provided a stark background on which to view the actions and justifications of drug companies. Despite increased cooperation between government and the drug industry and expedited approval of several useful drugs, these drugs are still prohibitively expensive. This Article explores the history and economics of the drug industry and proposes a system of national price regulation for all drugs.     

我国政府部门主张生态环境损害赔偿的法律分析

为规范各地人民法院审理生态环境损害赔偿案件,《最高人民法院关于审理生态环境损害赔偿案件的若干规定(试行)》的司法解释对于解决生态环境损害赔偿诉讼的相关问题作出明确规定.但政府部门主张生态环境损害赔偿的角色定位仍存在一些问题,应以环境公共信托理论和自然资源国家所有权理论为依据,将我国政府部门主张生态环境损害赔偿的主体角色...     

中国区域产业协同发展与《区域产业结构调控法》的制定

区域产业结构趋同是我国区域经济发展中的一个重要问题。这种趋同的根本原因是区域主导产业的选择和布局不是建立在资源禀赋和比较优势上,而是基于地方政府和官员的价值目标和地方利益。区域产业结构的同化,一方面使得各区域产业缺乏规模效益,加剧市场的恶性竞争,另一方面又使得本已匮乏的资源进一步恶化,激化了人与资源的矛盾,阻碍了我国经济进一步协调发展。中央政府先后出台了一系列产业调控与协调发展的政策,旨在扭转失衡的区域产业结构,但效果并不明显。本文分析了我国区域产业结构趋同的深层次原因,认为要从根本上解决这一问题,不仅要制定一系列调控区域产业结构的政策,更应适时地使一部分成熟的政策上升为法律,并在对我国区域产业实证分析的基础上,就制定《区域产业结构调控法》的重要性、调整对象、基本原则、主要内容提出了看法。     

我国石油行业政府监管机制存在的问题及对策

石油作为人类社会发展中的重要能源,在国家安全战略和人民日常生活中发挥着不可替代的作用,世界各国都对其采取了不同程度的国家控制。在我国,石油行业不仅具有行业本身的自然垄断性,同时由于我国政府的监管方式还使其具有独特的行政垄断性。本文从石油行业本身的技术经济特征入手,分析了我国石油行业政府监管机制存在的问题及立法缺陷,并对《石油法》的择日出台进行了前景展望。     

Governmental responsibility for victims of atomic testing: a chronicle of the politics of compensation

Since 1945 the U.S. government has conducted extensive atomic testing for purposes of protecting the national security and developing industrial uses of nuclear power. Newly available information indicates that many citizens were unwittingly harmed by exposure to radioactive fallout from this testing. The victims are pressuring the government to accept liability for its actions and offer compensation for the damages. To date, however, their efforts have been largely unsuccessful. This article analyzes the politics of the atomic compensation movement, from its beginnings through the 97th Congress. It concludes that, barring the enactment of specific legislation, atomic victims stand little chance of gaining financial compensation or moral satisfaction.     

The impact of foreign and state ownership on post-transition industrial concentration: the case of Polish manufacturing

This paper reports an analysis of the determinants of the level and changes in Polish industrial concentration in the early post-transition era. In particular, the relative effects of foreign and state ownership are examined. The empirical evidence is based on a panel of 144 Polish manufacturing industries over the period 1989–1993. The results suggest that both state and foreign ownership have a significant impact on industry concentration and this relationship is U-shaped. Minimum efficient scale is found to be the only other factor to impact on industry concentration.     

On compensation schemes for data sharing within the European REACH legislation

There is an intense debate on the impact of labour regulation in India today. Labour regulation in India differ state-wise and apply differently across types of workers (both regular and contract workers). This paper examines the joint effects of Employment Protection Legislation (EPL) and variable enforcement intensity on the growth in a size of temporary contract workers in the organised manufacturing sector. It uses the state level amendments to Industrial Dispute Act of 1947, and the average size of total number of labour inspectors for each state, as independent variables to capture the variation in labour regulations and enforcement intensity across thirty-one Indian states for the period 2000–2007. This paper argues that, average Indian firms located in strict EPL states hire differentially more temporary contract workers as compare to regular workers in response to variable enforcement intensity. Among other findings, the empirical analysis shows that firms prefer to employ excessive number of contract workers to circumvent firing and overall compliance costs of regular workers as stipulated by the Indian labour laws. Our results are robust to alternative specifications.     

文明转型与世界法律变革

人类文明从1500年以后开始由农耕文明向商工文明转型.商工文明具有农耕文明不具有的众多特点和优势,其最突出的特点就是商业交换主导工业生产、科技发展和人际交往生活.商工文明形成、发展的过程是一个复杂的法律变革过程,主要表现为:1500-1850年的制订宪法,改革刑法、民法、诉讼法以保护人们的生命、财产、人身自由和精神信仰...     

Work-related stress in Australia: The effects of legislative interventions and the cost of treatment

The Australian Institute of Health and Welfare data published in 2002 shows a continued rise in health care costs to the Australian community due to the growing number of people diagnosed with mental health disorders. Those mental health disorders may originate from a number of sources, including work and non-work-related factors. The so called work-related stress claims in all Australian jurisdictions are the most expensive form of workers compensation claim. In the most part this is due to the lengthy period of absence (duration) and complicated medical care which are characteristic of these claims. In Australia, in the last decade, attempts have been made to reduce the costs of compensable stress-related claims by imposing special legislative thresholds on such claims. This ‘back end’ approach to cost reduction has resulted in an array of legislative formula designed to exclude work-related stress claims. This article surveys the various legislative provisions dealing with work-related stress claims in Australia and provides an analysis of their effectiveness. A range of options are presented as alternatives to the exclusion of particular forms of work-related stress claims. The use of a corporate citizenship approach to the prevention and management of stress claims is also discussed as a proactive alternative to occupational safety and health legislative provisions and the workers compensation legislative exclusions.     

Financial Compensation for Victims of Catastrophes: A Law and Economics Perspective

This article examines the various approaches legislators may use to compensate victims of catastrophes. Traditional law and economics of insurance literature, with respect to government relief and insurance solutions towards financial compensation, is used to analyze (highly diverging) approaches in Europe and the United States. First, the importance of liability (insurance) is discussed in cases where a liable injurer can be identified; second, the possibilities of first-party insurance are examined, whereby various regulatory solutions (particularly the French model of providing mandatory coverage for catastrophes) is critically discussed. The (first-party) insurance solution is compared with public intervention, and a distinction is made between ad hoc government relief on an ex-post basis and structural compensation funds. The solutions applied and discussed in many countries are critically analyzed for their ability to provide adequate compensation at low costs and their effects on incentives for prevention and for developing private (insurance) solutions.     

Dealing sensibly with the threat of disruption in trade with China: the analytics of increased economic interdependence and accelerated technological innovation

There is now widespread concern in Washington over the large and growing U.S.-China trade deficit. This concern is premised on the view that the large trade deficit has reduced U.S. welfare by increasing unemployment and reducing wages. But these alleged negative effects cannot be seen. The average unemployment rate in 1999–2006 was 5 percent compared to 6 percent in 1991–1998; and the total compensation (in 2005 prices) of a full-time worker rose from $46,614 in 1991 to $50,523 in 1998 to $55,703 in 2005. The rise in average labor compensation (measured to include benefits) was not caused by a large income increase for high-skilled workers and a moderate income decline for low-skilled workers. The level of compensation for blue-collar workers also rose in the 1991–2006 period. The continued rise in US labor income in 1991–2006 might appear surprising because the post-1990 integration of the Soviet bloc, India and China into the international division of labor has doubled the number of workers participating in the world economy. Accelerated globalization was, however, not the only significant economic development during this period; accelerated technological innovations were perhaps even more significant in their economic effects. The latter development produced large productivity gains that enabled the US labor income to rise despite the greater competition from imports, continued relocation of production facilities to foreign countries, and increased immigration into the United States. The outcome from the accelerated pace of globalization and the increased pace of technological innovation is a more frequent turnover in jobs in the US, which translates into increased worker anxiety, and hence increased demand for protection. The optimum solution to the present trade tensions is a policy package that emphasizes multilateral actions. It is bad economics and bad politics to dwell only on just one region (China alone must change), and/or dwell on just one instrument (RMB appreciation alone). China should, in the short run, expand state expenditure to soak up excess savings with an emphasis on import-intensive investments; in the short run, accelerate import liberalisation beyond the commitments made in the negotiations for WTO membership; increase the rate of yuan appreciation to reduce the large depreciation against the Euro in 2006–2007, and speed up the appreciation if inflation rises; lower precautionary savings by providing public social insurance; and improve financial intermediation by replacing the monopoly state banking system with a predominantly domestic private banking system. The United States should quicken the reduction in fiscal imbalance; introduce tax incentives to raise the savings rate; and expand and improve trade adjustment programs and social safety nets, especially those that upgrade the skill of the younger workers. Most important in the face of rising protectionist sentiments around the world, the United States and China must work together to bring the Doha Round trade negotiations to a successful conclusion in order to prevent the WTO system from being eroded.     

Workers’ Compensation Claimants with Low Back Pain: the Role of Dissatisfaction in the Transition to Disability

Workers’ compensation systems represent naturalistic settings that often are perceived as unjust by the injured workers for which such systems were developed. This study examined the role of dissatisfaction with medical care and employer treatment on disability outcomes among a cohort of workers who had sustained low back injuries. A race-stratified sample of 358 workers (171 African-Americans, 203 Caucasians) with first incident low back pain was evaluated 21 months and again at 72 months after claim settlement. Evaluation included data related to demographics, socioeconomic factors, injury severity, claim settlement, satisfaction with workers’ compensation (WC) processes, and disability status. Multinomial logistic regression analysis was used to predict disability status (no disability vs. early disability vs. late disability) at each of the two time points. Analyses revealed contributions of multiple variables to early disability, including unique variance related to dissatisfaction with medical care and treatment by the employer. At 72 months, only demographic factors (age, race) and the receipt of temporary total disability (TTD) after injury predicted late disability. Results are discussed relative to the contribution of injustice perceptions and systemic factors; directions for future research are proposed.     

我国国家赔偿程序存在的缺陷及其完善

在我国,制定国家赔偿法是落实宪法的需要,有助于保护公民、法人及其他组织的合法权益,有助于监督国家机关及其工作人员依法行使职权与履行职责。国家赔偿程序是进行国家赔偿活动所经历的一个过程,是赔偿请求人依法实现取得国家赔偿权利的途径、手段和保障,也是有关国家机关办理国家赔偿事务的规程,对有关国家机关起着规范和制约的作用。《国家赔偿法》包括实体与程序的规定,仅有实体不能反映国家赔偿的正当性,赔偿程序在整个赔偿制度中具有重要意义。本文将从行政赔偿程序和司法赔偿程序的缺陷及如何完善几个方面来探讨我国国家赔偿制度。     

Compensation for workplace injury leading to suicide in Australia

Workplace-related death by suicide raises a number of difficult issues in the context of workers compensation. On first reading, workers compensation statutes usually prevent recovery of compensation where an injury is self-inflicted, suggesting that compensation for suicide will be excluded. Additionally, compensation is usually denied when the nexus between employment and injury is broken which is frequently the defence to any claim by the dependants of workers who takes their own life following a work injury. This article examines the Australian landscape in relation to the evolution of principles that apply to consideration of workers compensation claims where suicide is an element.