国家调节说的经济法体系之国际适用性研究——以日本的国家经济调节职能与经济法理论为例

进入垄断资本主义阶段后,为弥补市场失灵的缺陷,日本对经济实施了市场规制、宏观调控、国家投资经营三种国家经济调节职能,并相应制定了三种类型的经济法律法规对其予以规范和保障。日本国家的经济调节职能及经济法立法的实践表明日本经济法理论研究与日本国家经济调节实践之间存在一定的偏差。国家调节说为经济法体系的构建提供了科学基准,日本的现状证明了国家调节说对于构建经济法体系的国际适用性。     

Church Theft,Insecurity, and Community Justice: The Reality of Source-End Regulation of the Market for Illicit Bolivian Cultural Objects

In 2012 two men were lynched in Bolivia, first because there is an illicit market for Bolivian cultural objects, and second because a small, poor community turned to desperate measures to protect themselves from that illicit market due to the failings of national and international regulation. This paper is a case study of the reality of source-end regulation of an international criminal market in a developing country. I will discuss what is known about thefts from Bolivian churches, the international market for items stolen from these churches, and how such thefts are meant to be prevented on-the ground. Following this, I will present lynching in Bolivia as the most severe community response to the issues created by local politics, ineffectual policing, unenforceable laws, and a history of oppressive racism. I will conclude with a discussion of what we can reasonably hope to accomplish with source-end regulation.     

跨界海洋环境损害的国家责任问题探讨

国家责任的承担似乎是跨界海洋环境损害责任追究的必然结果,但缘于就此领域国家责任承担的法理论与法实践的困扰和障碍,使得跨界海洋环境损害责任私法化趋势明显,而且以广泛国际合作为基础的针对跨界海洋环境损害风险预防机制的强化将弱化责任追究本身的重要性。     

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.     

“泰坦尼克”案与海事赔偿责任限制的法律适用

从有关海事赔偿责任限制的国际公约和一些国内法的规定,以及有关国家的司法实践来看,海事赔偿责任限制的法律冲突的解决,不应仅仅适用法院地法,同时还需要适用国际条约、船旗国法、最密切联系地法律和公共秩序保留原则等;同时,中国《海商法》的有关海事赔偿责任限制的法律适用的规定存在不足,需要进一步完善。     

The devil is in the details: Managed care and the unforeseen costs of utilization review as a cost containment mechanism

This article addresses issues of liability when a single-payor in a national health care system makes a decision based on a utilization review program that injures the patient as a result. In Part I, the history of Managed Care Organizations (MCOs) is discussed to establish an understanding of the current health care landscape. Part II explains MCOs' use of utilization review to contain costs and analyzes the manner in which courts have addressed the issue of MCO liability for patient injuries sustained from denial ofcoverage. Finally, Part III concludes that current case law may limit a patient's access to a remedy for injuries sustained from a utilization review decision in a single-payor national health care system.     

Geopolitics and the Regulation of Economic Life

The nation‐state should be a central unit of analysis for research into international and transnational regulation. Considering the research implications of this, we focus on the emergence stage of the regulatory process. We discuss how knowledge is contested in discussions between states over regulatory problems. We argue that a range of factors, not just a narrowly conceived national interest, influence their incentive to cooperate. Research is needed into whether regulatory problems at this level pose new or additional issues for states. Other stages of the regulatory process need to be similarly examined, likewise the interaction between the stages themselves.     

A Shift in Focus: Systematisation in European Private Law through EU Law

The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi‐level European legal order. With the realisation that private law is and will remain complementary regulated at EU level and in national laws, a re‐orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re‐orientation is needed in relation to substance, process, instruments and enforcement; a more fundamental question needs to be addressed, however, in order to ensure coherence in the development of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.     

犯罪嫌疑人、被告人诉讼人权与诉讼权利比较研究

基于人的身份 ,犯罪嫌疑人、被告人享有广泛的实体人权 ,基于被嫌疑的身份 ,犯罪嫌疑人、被告人的实体人权将会受到一定的限制或剥夺。为了保障其实体人权免受不正当侵害 ,国际人权法为犯罪嫌疑人、被告人设定了许多诉讼人权 ,与此相应的是 ,我国法律赋予了犯罪嫌疑人、被告人广泛的诉讼权利。但与国际人权法规定相比 ,我国法律规定仍有较大差距 ,有进一步完善之必要。     

Proving liability for highly and fully automated vehicle accidents in Australia

This article considers how liability questions will be resolved under current Australian laws for automated vehicle (‘AV’) accidents. In terms of the parties that are likely to be held responsible, I argue that whether the human driver remains liable depends on the degree to which the relevant AV is automated, and the degree of control the human driver had over the events leading up to the particular accident. Assuming therefore that human drivers would not be held liable for the majority of highly and fully automated vehicle accidents, plaintiffs will have to establish liability on part of those who manufacture, maintain or contribute to the operation of AVs, under the claims available in Australia's product liability regime.This article then turns to the problems of proof that plaintiffs are likely to face in establishing AV manufacturer liability in negligence, or in a defective goods claim under Part 3–5 of the Australian Consumer Law (‘ACL’). Firstly, it may be difficult to determine the cause of the AV accident, due to the technical complexity of AVs and due to ongoing concerns as to the explainability of AI-decision making. Secondly, plaintiffs may struggle to prove fault in a negligence claim, or that the vehicle was defective for the purposes of Part 3–5 of the ACL. Essentially, under both actions, manufacturers will be held to a duty to undertake reasonable testing of their AVs. Given that it is currently impracticable to completely test for, and eliminate all AV errors, and due to the broader social utility the technology is likely to offer, plaintiffs may face evidentiary challenges in proving that the manufacturer's testing was unreasonable.     

Banking in the cloud: Part 2 – regulation of cloud as ‘outsourcing’

This paper looks at EU banks' use of public cloud computing services. It is based primarily on anonymised interviews with banks, cloud providers, advisers, and financial services regulators. The findings are presented in three parts. Part 1 explored the extent to which banks operating in the EU, including global banks, use public cloud computing services.Part 2 of this paper covers the main legal and regulatory issues that may affect banks' use of cloud services. It sets out how EU banking regulators have approached banks' use of cloud services and considers regulators' lack of cloud computing knowledge. The paper further considers how the regulation of outsourcing applies to banks' use of cloud services, including whether cloud computing constitutes “outsourcing”. It analyses the contentious issue of contractual audit rights for regulators as well as legal and practical issues around risk assessments, security, business continuity, concentration risk, bank resolution, and banking secrecy laws.Part 3 looks at the key contractual issues that arise between banks and cloud service providers, including data protection requirements, termination, service changes, and liability.All three parts of the paper can be accessed via Computer Law and Security Review's page on ScienceDirect at: http://www.sciencedirect.com/science/journal/02673649?sdc=2. The full list of sources is available via the same link and will be printed alongside the third part of the article.     

Banking in the cloud: Part 1 – banks' use of cloud services

This paper looks at EU banks' use of public cloud computing services. It is based primarily on anonymised interviews with banks, cloud providers, advisers, and financial services regulators. The findings are presented in three parts. Part 1 explores the extent to which banks operating in the EU, including global banks, use public cloud computing services. It describes how banks are using cloud computing and the key drivers for doing so (such as time to market), as well as real and perceived barriers (such as misconceptions about cloud and financial services regulation), including cultural and technical/commercial aspects. It summarises how banks have approached the cloud and how cloud providers have approached the banking sector.Part 2 of this paper will cover the main legal and regulatory issues that may affect banks' use of cloud services, including how the regulation of outsourcing applies to banks' use of cloud services. Part 3 will look at the key contractual issues that arise between banks and cloud service providers, including data protection requirements, termination, service changes, and liability.All three parts of the paper can be accessed via Computer Law and Security Review's page on ScienceDirect at: http://www.sciencedirect.com/science/journal/02673649?sdc=2. The full list of sources is available via the same link and will be printed alongside the third part of the paper.     

Bridging the Gap: Humanitarian Protection and the Convergence of Laws in Europe

This article uses the thematic of humanitarian protection to examine the convergence of laws in Europe. It considers the heterogeneous architecture of the Refugee Convention and European Convention on Human Rights then analyses the homogenous framework of the EU's Common Asylum System and, in particular, the Qualification Directive. It argues that in an area where international, regional and national laws intersect, convergence needs to be underpinned by Member States adopting a common interpretative methodology that has international law at its core. Article 15 of the Qualification Directive (QD) is used to illustrate how this can be achieved. The article adds to the growing literature on the convergence of laws in Europe and illustrates the importance of adopting a common interpretative methodology. It suggests a paradigm for protection regimes around the world and a methodology that could be transplanted to other areas of law involving the intersection of international, regional and national laws.     

国际投资法的自由化趋势与我国投资法的重构

晚近，国际投资法律呈现出了前所未有的自由化趋势。但是，各国外资法律过快的自由化，尤其是对发展中国家而言，任凭外资毫无限制地垄断本国的一些重要经济部门，将会给其国民经济发展带来极大的负面作用。因此，我们应根据我国目前的经济发展状况和引进外资的长远目标来谨慎地实行外资立法自由化，正确地确定重构外资立法的基本思路。     

International Economic Criminal Law

This inquiry explores the question of transnational companies’ criminal liability for international crimes, reviewing the current state of research in the field of international economic criminal law, a discipline that hitherto has received only scant analysis. Following some preliminary conceptual remarks (I.), the forms of corporate participation in such crimes (II.) and the supranational and national practice since Nuremberg are presented. This practice reveals a clear trend towards corporate liability, albeit represented by leading company staff. For this reason, and because legal persons (companies) ultimately act through natural persons (their staff), their liability (IV.) cannot be convincingly established on a purely collective basis – in the sense of a pure organisation model (IV. 4.1.) – but only on the basis of the attribution model, namely as a derivative corporate liability based upon supervisory or organisational culpability (IV.4.2.). The attribution model’s individual approach – or, to use procedural terms, the individualistic “trigger” for the prosecution of companies – finally brings us to the well-known forms of criminal participation (V.), with liability for complicity in particular coming into question. All in all, the essay concludes (VI.), we should not expect too much of (international) criminal corporate liability. Here, as in many other areas, criminal law can only have a (limited) preventive effect as part of a holistic approach.     

论商标侵权的归责原则--从"耐克滑雪夹克商标侵权案"谈起

从"耐克滑雪夹克商标侵权案"的审判可以看出我国商标侵权归责原则规定的缺陷:现有法律对商标侵权归责原则未作明确规定,在司法实践中将无过错责任制度作为商标侵权归责的依据,其结果常常有悖法律的正义性.商标侵权应确定过错侵权归责原则,其正义性体现在:过错责任原则是平衡市场竞争关系的必然选择,是适应我国民法体系的合理选择,是与外国及国际商标权保护相契合的选择.     

多式联运经营人货物损害赔偿责任限制规则的构建--兼评我国《合同法》与《海商法》的相应规定

网状赔偿责任限制模式、统一赔偿责任限制模式和综合性赔偿责任限制模式是构建多式联运经营人货物损害赔偿责任限制规则的三种模式。而综合性赔偿责任限制模式业已被当今多式联运国际规则和国内立法所采用。我国多式联运立法尽管也采纳该模式 ,但具体规则设计上仍有待完善 :一方面 ,应赋予多式联运经营人对任何形态的货物损害享有适当的赔偿责任限制的权利 ;另一方面 ,损害赔偿责任限制立法规则的设计应考虑规则的可预见性     

“法律3.0时代”背景下的“法治中国”

按照时间顺序和发展内容，可以对现代法制进行三个阶段的划分，分别用“法律1．0时代…法律2．0时代”和“法律3．0时代”来标识。当代世界，以各国的国家法、国与国的国际法和区域一体化的超国家法为三种法律形态，已经步入“法律3．0时代”。三种形态共存构成了全球法律复杂多样的面貌，三者之间的互动使得其中任一类型法律的属性、存在和运行，都会直接受到其他两个的作用和影响。我国目前面，临从“法律1．0时代”到“法律3．0时代”三重任务叠加的情形。向内，这指向从民主与法制到“法治中国”的全面建设；向外，这意味着应对、合作、参与全球性的法律秩序建设，其中包括法律规则制度、甚至原则理念的竞争。     

The death penalty and the right to life

On the first anniversary of the killing of Osama Bin Laden, some reflection on the phenomenon of state-sponsored execution in an enlightened, civilised world seems appropriate. While this subject has an obvious international character, it also possesses some intriguing Irish and Northern Irish dimensions. In a wide ranging treatise, I examine how the rule of law has dealt with the death penalty at both the national and international levels, highlighting in particular the important influence of national constitutional laws in this sphere. I examine also the influence of the universally acknowledged right to life and the requirement of due process.