刑法中的国有公司、企业辨析

公司与企业之间的关系从本来意义上说是一种种属关系,但在我国刑法中,在多数情况下,公司与企业的关系是并列关系。如何理解刑法中规定的国有公司、企业,存在着不同的看法,这不同的看法,可能会对同一案件产生罪与非罪、此罪彼罪的不同认定。本文认为,刑法中所称的国有公司、企业是指全部资产为国有资本的公司、企业,而不包括国有资本控股或参股的公司、企业。     

Pharmaceutical companies abandon case against South Africa: victory for people with HIV/AIDS

On 19 April 2001, 39 pharmaceutical companies bowed to worldwide condemnation and pressure, and completely abandoned their court action against the South African government over legislation that could be used to make essential drugs affordable for millions of South Africans.     

Assumption of Responsibility in Corporate Groups: Chandler v Cape plc

In Chandler v Cape plc, the Court of Appeal imposed for the first time liability on a company for a breach of its duty of care to an employee of its subsidiary. In doing so, the court laid out a new four‐part test for ascertaining a parent company's responsibility for the health and safety of individuals employed by group companies. Although liability of parent companies may be justified under the right circumstances, the court's approach in Chandler is problematic in a number of ways and raises more questions than it answers.     

Corruption in the North Sea oil industry: Issues and assessments

The article explores the extent, the institutional mechanisms and economic consequences of economically motivated bribery in the Norwegian (and British) oil industry. It focuses on corruption directed against middle-level management in the oil companies. The empirical part of the study is partly based on public information collected from court cases, mainly from British courts; and partly based on systematic interviews of security experts in Norwegian and international oil companies, and British and Norwegian police.     

谁将《破产法》束之高阁？

2008年是金融危机最为肆意汹涌的一年,也是被寄予厚望的新《破产法》完整施行的第一个年头,这两个条件几乎铁定了2008年破产立案的数据要比2007年有大幅上升。但是根据北京思源事务所下属的中国唯一的破产数据库报出的最新资料显示,2008年全国破产案件立案数为2955件,这个数字比2007年还下降252件,降幅为8％。     

The battle over global drug markets: enforcement of pharmaceutical patents in the United States, Europe and Japan

Legal context: Pharmaceutical patent litigation is on the rise. The focal pointof this increasingly contentious area of litigation is the surgein pharmaceutical patent challenges mounted by generic drugmanufacturers. Pharmaceutical companies need to identify viableenforcement strategies that can survive these challenges andeffectively manage the life cycle of their pharmaceutical productsaround the world. Key points: The degree to which pharmaceutical companies can capitalizeupon the value of their second generation patents to extendthe protection given to existing drug products depends in parton the patent landscape, country by country, and also on theregulatory landscape for generic drug products and their entryinto the marketplace.This paper will examine the patent laws,drug approval regulations, and court decisions on the validityand enforceability of later stage or second generation patentsdirected to combination compounds, selection inventions, andnew indications, in three major jurisdictions: The United States,Europe/UK, and Japan. Practical significance: Successful pharmaceutical companies can maintain a competitiveadvantage in the global pharmaceutical industry by evaluatingand strengthening the way existing drug products are protectedand, in many cases, changing the nature of protection underthe patent laws by improving upon the pharmaceutical productitself.     

公司市场退出法律制度的嬗变逻辑与进化路径

我国《公司法》尚未认可公司市场退出的多项改革,滞后于实践的发展,对瑕疵经营公司缺乏包容度,仅设置了局限于法庭外退出机制的单一性规定,需要进行体系性再造。公司市场退出的丰富实践与我国《公司法》的有限规定形成对比,强化公司市场退出立法,整合与更新既有法律制度安排,能够维系债权人利益的整体保护水平。重申公司市场退出法律制度的私法底色,明确公司登记是对商事主体资格确认的本意,是公司市场退出法律制度改革的关键。登记机关应尊重清算时公司剩余财产分配的自治权,由“前端严审”转向“后端惩治”,以信用机制约束滞留市场的公司,发挥商事资质确认的功能。我国《公司法》应当成为法庭外与法庭内公司市场退出法律制度的“母法”。简易注销制度应扩大调整对象,强制退出制度不应成为依职权注销制度,可在适用前提、期间和结果方面完善休眠制度。     

Personal Data and the GDPR: Providing a Competitive Advantage for U.S. Companies

The European Union's General Data Protection Regulation (GDPR) became applicable in May 2018. Due to the GDPR's extraterritorial scope, which could result in massive fines for U.S. companies, comparative data privacy law is of great current interest. In June 2018, California passed its own Consumer Privacy Act, echoing some of the provisions of the GDPR. Despite the many articles comparing the two schemes of law, little attention has been given to the foundation of these laws, that is, what exactly encompasses the data referred to by these laws? By understanding how the term “personal data” or “personal information” is defined in both jurisdictions, and why these definitions and the treatment of protected data are so different, companies can strategize to take advantage of these developments in the European Union. After explaining the differences in how data is treated in the United States and the European Union by exploring the definitions, regulations, and court cases, we will explore the five legal strategy pathways that companies might pursue with respect to the legal aspects of data transfer and privacy law compliance. While these strategies range from ignoring the law to adopting the European model worldwide, this analysis of legal strategy reveals a means for companies to gain a competitive advantage through their adoption of a worldwide compliance scheme.     

物业管理合同履行中不当抗辩行为的限制

在物业管理纠纷发生时，物业管理企业经常以停水断电或拒绝提供其他涉及业主重大利益的物业服务威胁业主，业主也动辄以拒绝缴纳或长期拖欠物业费对抗物业管理企业，这些行为违背诚实信用原则、损害社区公共利益，属于滥用抗辩权的不当抗辩行为。应当从立法和司法角度对这些不当抗辩行为进行限制，在我国现有立法没有相应规定的情况下，法院应援用诚实信用、公共利益和禁止权利滥用原则在司法审判实践中对不当抗辩行为进行限制。在限制不当抗辩行为时，应当允许当事人对无损他人利益的抗辩方式进行约定，也不能否定当事人行使正当的履行抗辩权。     

Battle in the name of privacy and security: A comment on Tencent vs. Qihoo (Supreme People's Court of China 2014)

One strategy for companies competing in Internet industries is to attack the privacy and security problems of products or services provided by a competitor and then to deliver remedial software to attract consumers. The recent ruling of the Supreme People's Court of China (SPC) establishes legal constraints on this strategy, recognising that a company owes a high duty of care when criticising the privacy and security policies of its competitors and identifying the line between legal technological innovation and unfair interference with the business of competitors. This article provides a summary of the background, facts and court conclusions as well as relevant comments on the impact of this judgement and identifies the issues that require further clarification.     

德国法院体系探析

德国特色法院体系的形成与演变有其深刻的社会历史背景,首先是文化传统,其次是经济体制,第三是工人运动。德国的法院系统由宪法法院、普通法院和专门法院三类组成。宪法法院专门审理违宪案件;普通法院只审理刑事案件和民事案件;专门法院包括(普通)行政法院、财政法院、劳动法院、社会法院、专利法院、军事法院和惩戒法院等。除了(普通)法院和宪法法院具有独立地位外,其他法院均隶属于政府有关部门。德国行政审判权由各级行政法院与劳动法院、社会法院、财政法院等共同行使。专门法院的性质介于行政机关与司法机关之间,但行政机关的性质更多(本质上属于行政司法)。     

Decision Making in a Hybrid Organization: A Case Study of a Southwestern Drug Court Treatment Program

This article presents a case study of decision making in a drug court located the southwestern United States. This study seeks to fill a gap in research on decision making by attending to the ways that drug court officials navigate the demands of a court that is dedicated to both therapy and criminal justice. This analysis differs from previous research by viewing the drug court as a “hybrid organization” and asking how the staff members interact in the decision‐making process. Additionally, this research provides an opportunity to investigate the concerns over collaborative decision making raised by critics. The data from this case study reveal that as a hybrid organization, the drug court staff often divides along institutional lines by allowing the counseling staff to manage treatment and the judge to manage punishment. When tensions arise, they are resolved by the structure of the court, which is hierarchical rather than collaborative.     

法庭警察权研究

法庭警察权乃法院为维护法庭秩序及审判的威严所享有的采取秩序措施及施加秩序罚的权力。法庭警察权有妨害预防作用、妨害排除作用与妨害制裁作用三种基本形态。基于法庭秩序维护的实效性与法庭警察权实施基础的客观实在性,法庭警察权依附于裁判权,由担当裁判权的法院行使。法庭警察权以功能意义上的法庭为其实施的时空范围,以妨害法庭秩序及审判威严的行为及状态为规制对象。对于妨害法庭秩序的行为实施何种作用形态的法庭警察权取决于法院的合目的性裁量,应受比例原则的规制。法庭警察权在我国由三大诉讼法分别规范,不仅未能科学地体认法庭警察权的性质,也未能正确地廓清法庭警察权应有的实施边界,加剧了司法实务中法庭警察权制度适用之乱象,亟待统一立法构建。     

委托调解的制度要素

委托调解的正当性和制度功能已为司法政策和国家治理政策所肯定。委托调解的实效发挥有赖于其制度要素的合理改进与持续完善。法院的管辖范围和可适用的审理程序决定着其是否有权进行委托调解。委托调解人应保持组织型和个人型并存的格局,可依次采用共同选定、商请法院确定和法院依职权确定三种方式予以确定。适用委托调解的案件应首先具备"可调性",且不只限于简单民事案件。依职权启动委托调解不会使参加程序的强制变为接受处理结果的强制,且可缓和合意贫困化所带来的机制紧张。处理好立案审查和立案前委托调解启动二者之间的先后关系,立案前委托调解将不会影响到对当事人之裁判请求权的妥当保障。对委托调解之期限的长度确定、延长以及是否从法定期间中扣除离不开谨慎的考量。法院对委托调解协议负有合法性审查义务且依其只能制作民事调解书。委托调解结案可收取更低的案件受理费,但不能免除。     

关于法院拍卖采矿权的思考

采矿权是一个特殊的财产权，法院强制执行采矿权亦具有特殊性。在执行程序中，人民法院可否直接委托商业拍卖机构向社会公开拍卖采矿权，可否直接将采矿权人的采矿权通过民事裁定书裁定给债权人？拍卖采矿权是由国土资源主管部门主导还是由法院主导？对此，争议很大。上述问题的解决涉及对法院执行权性质和采矿权性质的认识，涉及对法院拍卖和权利转让关系的理解。     

CHOICE OF COURT AGREEMENT WITH FOREIGN ELEMENTS IN CHINA: SHANDONG JUFENG V. SOUTH KOREA MGAME

Unlike statutory and discretionary jurisdiction, jurisdiction by choice of court agreement concluded in foreign-related civil and commercial matters should be decided by the parties. As a special contract, the choice of court agreement is so independent that its validity is governed by the law chosen by the parties or by the law of the country where the chosen court is situated in case that the choice of law is invalid. Amendments to the Civil Procedure Law (hereinafter referred to as “CPL”) of People’s Republic of China (2012) should not only include the jurisdiction by choice of court agreement with foreign-related elements, but also stipulate it in a more standardized way, rather than simply refer to provision of jurisdiction by choice of court agreement in domestic cases. At the same time, the CPL should make the scope of application of choice of court agreement more clear, and provide choice of law clause and its confirmative elements when deciding its effectiveness.     

The effect of transfer mechanism from juvenile court on conviction on a target offense in criminal court

The question of whether juvenile offenders should be handled in criminal court has been addressed by a number of studies. However, few have examined the effectiveness of the type of transfer mechanism and how it relates to protecting the public. Whether the mechanism used to transfer juvenile offenders to criminal court has any effect on the likelihood of being convicted of a target offense criminal court is examined here. It was found that the juveniles sampled in this study had a greater chance of being convicted on their target offense in criminal court if they were sent there via judicial waiver than if they were excluded from juvenile court jurisdiction by statute.     

重构我国民事诉讼审级制度的探讨

审级制度是民事诉讼的基本制度,是民事诉讼法的重要内容。它是指按照法律的规定,一个民事案件需要经过几个不同级别的法院审理,裁判才产生既判力的制度。由于民事诉讼本身的特点,基于民事诉讼的基本理念和所追求的目标,民事诉讼所设立的审级制度应当是多层次的,即以两审终审制为基础,以有条件的一审终审制和三审终审制为其必要的补充。换句话说,将有条件的一审终审制和三审终审制与基本的两审终审制相结合共同构成我国的审级制度。     

Mental Health Court Outcomes: A Comparison of Re-Arrest and Re-Arrest Severity Between Mental Health Court and Traditional Court Participants

Mental health courts have been proliferating across the country since their establishment in the late 1990's. Although numerous advocates have proclaimed their merit, only few empirical studies have evaluated their outcomes. This paper evaluates the effect of one mental health court on criminal justice outcomes by examining arrests and offense severity from one year before to one year after entry into the court, and by comparing mental health court participants to comparable traditional criminal court defendants on these measures. Multivariate models support the prediction that mental health courts reduce the number of new arrests and the severity of such re-arrests among mentally ill offenders. Similar analysis of mental health court completers and non-completers supports the prediction that a "full dose" of mental health treatment and court monitoring produce even fewer re-arrests.     

Observations of reintegrative shaming in a mental health court

This study compares the use of stigmatizing and reintegrative shame - as specified in Braithwaite's Crime, shame and reintegration (1989) - across traditional criminal court and mental health court settings. Items from the Global Observational Ratings Instrument were used to gather data on 87 traditional court cases and 91 mental health court cases, presided over by five different judges. The observational items capture three constructs: respect, disapproval, and forgiveness, as they apply to Braithwaite's theory. We present means tests to examine differences in shaming between court types and judges. Findings show that the mental health court is more likely to use reintegrative shaming and show respect and forgiveness for offenders, and less likely to show disapproval. Similarly, judges who preside in both court types are significantly more likely to practice reintegrative shaming in the mental health court context. We further explore these findings using field notes and illustrate those components of a mental health court that are conducive to reintegrative shaming.