论归责原则与侵权责任方式的关系

我国侵权责任法第6条规定的过错责任原则、第7条规定的无过错责任原则和第24条规定的公平责任,均不适用于停止侵害、排除妨碍、返还财产、消除影响。第7条和第24条的规定还不适用于赔礼道歉、消除影响、恢复名誉。停止侵害、排除妨碍、消除影响等责任方式宜适用于第21条的规定,以免造成法律漏洞,尽管这并非我国侵权责任法的立法本意,亦非立法技术使然。返还财产可适用我国民法通则第117条第1款,或者我国物权法第34条或第245条的规定。归责原则与侵权责任方式之间的匹配关系,实际上仅限于损害赔偿(赔偿损失)、恢复原状、赔礼道歉、消除影响和恢复名誉,难以扩及其他责任方式。     

Give them what they want? The permissibility of pediatric placebo-controlled trials under the best pharmaceuticals for children act

This article discusses the Best Pharmaceuticals for Children Act and the FDA's request for placebo-controlled studies of drugs to treat OCD and depression in children. First, the article explains the need to test drugs in children and examines the reasons this testing has not occurred. Next, the article describes the legislative and administrative responses to remedy this lack of research and assesses the ethics and legality of their implementation. The article concludes that these initiatives are legally and ethically acceptable until a safe and effective treatment is determined--at which point the use of placebos in pediatric testing must be replaced with active controls.     

信用证非单据条款研究

从分析信用证上面的条款着手,在不损害信用证独特性质的前提下,利用合同法的理论,通过将体现开证行和受益人合意的、单据性要求的条款称为信用证“单据条款”来界定其反面——信用证非单据性条款;分析了相关的法律对于信用证非单据性条款的规定,以厘清法律对于这种条款的意见;通过比较分析两个相似的信用证非单据条款判决来分析司法实务界的看法,指出法院在处理非单据条款的时候会突破UCP500第13条(C)的规定而适用合同法。最后对如何处理这种条款提出了建议。     

The Biodiversity Convention and in situ Conservation in Zambia

This article describes biological diversity, its importance to the global community and to the African continent, focusing particularly on Zambia, my home country. The article considers briefly the provisions of the Convention on Biological Diversity¹ (the Biodiversity Convention) and in particular the in situ conservation obligations under the Convention. The article identifiies the required actions for the effective in situ conservation of biological diversity in Zambia. In this regard, the article high-lights the main problems associated with biological diversity loss, examines Zambia's legislation on the conservation of biological diversity and considers whether the obligations thereunder comply with the actions required for the effective conservation of biological diversity identified under the Biodiversity Convention. The article concludes with recommendations on what actions are needed for effective in situ conservation of biological diversity in Zambia.     

REALITY IS. . . . A RESPONSE TO MARTINDALE,TIPPINS, BEN‐PORATH,AUSTIN, AND WITTMANN

This article is written as a response to the Martindale et al. critique of the Ackerman and Pritzl (2011) child custody evaluation practices article. The Martindale et al. critique focuses on a small portion of the overall results regarding test usage and suggests that the entire article is “flawed and deficient.” However, their critique engages in confirmatory bias and exaggerated statements and ignores the overall value of the article in general. A more broad‐based explanation of the results is provided herein.     

论公共危机管理中的行政指导

本文结合公共危机管理的实践,探讨了行政指导在公共危机管理中运用的必要性,阐述了在公共危机管理中采用行政指导措施的法理基础是行政应急性原则,并对我国公共危机管理系统的建立和完善提出了相关的对策建议。     

Subsidiarity in the Area of EU Justice and Home Affairs Law—A Lost Cause?

This article intends to highlight the concept of subsidiarity in the area of the third pillar and EU criminal law more generally. In doing so, the article tries to show that criminal law could and should be seen as imbued with 'subsidiarity' and, more specifically, that it could be viewed as an expression of the principle of ultima ratio—a minimalism approach—in criminal law. Accordingly, the article asks why subsidiarity appears to be forgotten in third pillar matters despite its important function in this area. Moreover, the article confronts such a desired application of subsidiarity in the context of established EC law doctrine, by questioning whether it is possible simply to transplant the supranational discussion into the terrain of criminal law. Further, the article explores the function of Article 47 EU as the watchdog of the supranational sphere and discusses also briefly the phenomenon of enhanced cooperation in relation to the principle of subsidiarity in the domain of EU Justice and Home Affairs.     

The bioethics and law paradox: an argument to maintain separateness with a hint of togetherness

This article analyses how bioethics and law interact and work together. The first half of the article provides definitions of both ethics and bioethics. The article then considers a number of different bioethical standpoints to demonstrate the variance of views in relation to bioethics. In addition, the first half of the article focuses on the different regulatory possibilities in regard to bioethical contexts. This demonstrates that law is of central importance to bioethics. This part also shows that even though law and ethics are often used simultaneously to achieve bioethical goals, law and ethics cannot be used interchangeably. Thus, even though it is somewhat inevitable that law will be used in the pursuit of the goals of bioethics, bioethics and bioethical principle should not be merely a vehicle for law-makers to utilise. The second half of the article focuses on the issues of autonomy and consent to demonstrate how law and ethics have developed in one of the foundation areas of bioethics.     

EDUCATION FOR PARENTS DIVORCING IN CALIFORNIA

This article describes the variety of educational programs found in courts throughout California. It is the product of a 1-year study of these programs, and the article catalogues the effects of one state in providing educational programs for families going through divorce. The article describes the range of possibilities for courts to select the program best suited to their needs.     

Cross-Border cooperation in the Rhine-Meuse region: Aachen (D) and Heerlen (NLs)

This article considers the role of land in (regional) development and the financing of such development. Specifically the article reflects on the application of legal provisions relating to the use of land and development, including considering how fiscal instruments can be used to promote economic development in a cross-border legal entity. The article concludes with recommendations as to how cross-border economic development can be improved. The article takes as its starting point the intention of the regions of Parkstad Limburg (NLs) and Aachen (GER) to establish a European Grouping for Territorial Cooperation (EGTC), with a view to promoting cross-border economic and spatial development.     

极端事件的风险恐慌及对行政法制之意蕴

本文运用心理学知识,分析了公众对极端事件的风险会产生恐慌性认知;运用决策学的研究成果,阐述了包括恐慌在内的情绪在公众的决策中扮演了非常重要的角色;从机制和机理的角度剖析了极端事件的风险恐慌能够阻碍公众,甚至整个社会对风险的严重程度做出理性判断。以此为前提,阐述了在一个民主社会中,当行政机关对公众的需求进行有效的回应成为其管理的合法性基础时,其所制定的为防止极端事件不再发生的行政措施会出现非理性的情况,为确保行政措施合法性,就需要对行政法律制度进行变革:包括建立一种长效的风险治理与评估机制,以便对公众的要求加以反思、评估和过滤;通过规则来限制行政措施的过度性;通过"日落条款"来规定行政措施的适用期限;通过补偿机制来确保公正,同时增加行政措施的合理性。     

Family Law,Parents with Disabilities,and the Americans with Disabilities Act

Parents with disabilities contend with bias within the family law system, often threatening their custody and visitation rights. The overarching goal of this article is to explore the experiences of parents with disabilities involved in custody and visitation disputes and the application of the Americans with Disabilities Act (ADA) in these cases. This article begins with an overview of parents with disabilities and their interactions with the family law system. Next, the article examines the ADA and its applicability to custody and visitation disputes. Finally, the article offers thoughts about strategies that can be utilized by attorneys to ensure that the rights of parents with disabilities are protected.     

Euthanasia: a reply to Bartels and Otlowski

This article counters arguments made by Bartels and Otlowski in 2010 regarding euthanasia. It suggests that the authors over-emphasised the importance of individual autonomy in its bearing on the euthanasia debate. Drawing on literature concerning elder abuse as well as the "mercy-killing" cases reviewed by Bartels and Otlowski, the article contends that legalising euthanasia may increase the risk that some patients are pressured, inadvertently or deliberately, to request access. Safeguards to detect and deter pressure may be of limited effectiveness against such pressure. Regarding slippery slope arguments, the article discusses the potential for an Australian euthanasia system to eventually be extended in scope to encompass mental suffering. The article encourages consideration of long-term potentialities, including changes in macro-economic conditions.     

Combatting peer-to-peer file sharing of copyrighted material via anti-piracy laws: Issues,trends, and solutions

This article analyses potential end-user copyright violations associated with peer-to-peer (P2P) file sharing and the anti-piracy efforts currently underway in order to tackle them. This article discusses international developments in terms of trends, issues and solutions aimed at addressing peer-to-peer file sharing of copyrighted material. First, the article introduces P2P file sharing, its increasing significance in the growing digital media economy, and the legal issues surrounding this topic. Next, the article provides a comparative analysis of global efforts and trends in preventing digital piracy by analyzing relevant legislation, case law and practices in multiple jurisdictions, including the United States, United Kingdom, France, Sweden, and Japan. In addition, the article reviews Hong Kong's current case law and proposed legal reforms including an analysis of their deficiencies with respect to addressing P2P copyright infringement. The article concludes with an analysis of existing trends in preventive measures against copyright infringement through P2P file sharing and suggests directions on future legal and non-legal measures that Hong Kong as well as the international community can take in combating digital piracy and copyright infringement through peer-to-peer file sharing.     

The dangers of constitutional identity

This article purports to expose the dangers of the concept of constitutional identity – a doctrine shaped by apex state courts to shield areas of the national legal systems from the influence of European law. First, the article overviews the use of the concept of constitutional identity in the case law of national and supranational courts, mapping the growing expansion of this doctrine. Second, the article seeks to reconstruct the genealogy of the concept of constitutional identity, tracing its legal origins. Third, the article advances a normative criticism of the concept of constitutional identity, explaining how the doctrine suffers from an incurable lack of determinacy, which inevitably results in arbitrariness in its use. Moreover, the article points out how the practical use of a defensive concept such as constitutional identity is poised to weaken, if not undermine tout court, the process of European integration.     

电视时政新闻报道实证研究三题

本文聚焦于重庆电视媒体的时政新闻报道,从具体业务切入,对其进行了比较系统的实证研究。首先从文化品位的角度。围绕片头、播音员、栏目设计、文字、声音和画面等具体业务,探讨了地方主流电视台的定位。其次针对电视时政新闻报道缺少同期声、缺乏真实性和现场感、违背电视新闻"声画合一"要求的积弊,提出了解决的措施。最后集中阐述了创造电视时政新闻报道精品的具体途径和办法。文章立足于电视时政新闻报道实例基础之上,对电视时政新闻报道业务工作的改进,具有一定的现实指导意义。     

Constitutive Criminology and the ‘War on Terror’

This article presents a constitutive criminological perspective of the ‘war on terror’. The article will first deconstruct the ‘war on terror’; showing how constitutive criminology provides a framework in which foreign policy, the UK state; the police, and society can be systematically analyzed in relation to one another. Second, the article explores how constitutive criminology enables a critical analysis of the dominant state-centric ‘war on terror’ discourse. The article through discussing the multifaceted ‘war on terror’ demonstrates the relevance of constitutive criminology, as a non state centric approach to critical perspectives in criminology.     

Response to “Ideology and Rhetoric Replace Science and Reason in Some Parental Alienation Literature and Advocacy: A Critique,” by Milchman,Geffner, and Meier

The author wrote an article, “Parental Alienation and Misinformation Proliferation,” for this Special Issue of Family Court Review, which is devoted to various aspects of parental alienation (PA). This short article is a response to the article by Milchman, Geffner, and Meier, which discussed my article and other contributions to the Special Issue. All of these articles represent an attempt by the Editors of the Special Issue to promote “dialogue” among writers who have different perspectives regarding parental alienation. In my view, this is a misguided endeavor, since the publication of cascading criminations, recriminations, and re‐recriminations simply creates confusion and consternation for the readers of Family Court Review. This new article offers an alternative approach for creating constructive dialogue among PA‐promoters and PA‐detractors, that is, convene a face‐to‐face discussion of these individuals and encourage them to write an article together in which they jointly explain their various perspectives regarding PA.     

禁止流质约款之合理性反思

流质约款是指民商主体当事人之间在有关物的担保合同中约定的,于债务人到期未能清偿债务时即由担保权人取得所约定的担保物的所有权的条款。流质约款为国内外多数担保立法明确禁止,亦为我国民商法学界所否定。但是反观民商法理论上有关禁止流质约款的理由,却存在着诸多让人难以信服和与现实生活的悖谬之处,其立法规定也缺乏有力根据。我国的物权立法对流质约款应当予以认可。