The Global Trade in Live Cetaceans: Implications for Conservation

Cetaceans—small whales, dolphins and porpoises—have long been popular performers in oceanaria. Captive cetaceans have also been used for research and employed in military operations. In some jurisdictions cetacean display facilities have been phased out or prohibited, and in the US and Hong Kong a high proportion of the whales and dolphins now in captivity have been captive-bred. A large, growing and increasingly opportunistic trade in dolphins and small toothed whales nevertheless exists, its centres of supply having shifted away from North America, Japan, and Iceland to the Russian Federation and developing nations in Latin America, the Caribbean, West Africa, and Southeast Asia. Demand for live captures is being driven by: a new wave of traditional-type oceanaria and dolphin display facilities, as well as travelling shows, in the Middle East, Asia, Latin America, and the Caribbean; increasingly popular programs that offer physical contact with cetaceans, including the opportunity to feed, pet, and swim with them; and the proliferation of facilities that offer ‘dolphin assisted therapy’ to treat human illness or disability. Rigorous assessment of source populations is often lacking, and in some instances live capture is adding to the pressure on stocks already at risk from hunting, fishery bycatch, habitat degradation, and other factors. All too often, entrepreneurs appear to be taking advantage of lax (or non-existent) regulations in small island states or less developed or politically unstable countries to supply the growing global demand for dolphins and small whales. The regulation of trade in live cetaceans under CITES is fraught with problems, not least the poor quality of reporting and the lack of a rigorous mechanism for preparation, review, and evaluation of non-detriment findings.     

网络服务提供者的损害赔偿责任——以日本法为中心

一、规定网络服务提供者的法律责任限制的必要性　　说起对网络服务提供者的法律责任限制,首先要提到美国《跨世纪数字化版权法》(DigitalMillenniumCopyrightAct) ,因为制定《跨世纪数字化版权法》以后,大家就觉得需要限制网络服务提供者的法律责任。过去在美国侵害了著作权,不论有无过错,权利者可以要求损害赔偿,在网络用户侵权的情况下,责令服务提供者无条件地承担损害赔偿责任是不合理的。所以《跨世纪数字化版权法》不仅仅是修改美国版权法本身不合理的地方,也是向版权所有人、网络服务提供者和用户提供更好的法律保护。虽然各个国家…     

关于监护人对未成年人致人损害的赔偿责任

监护人对未成年人致人损害的责任是一种特殊的侵权责任。我国《民法通则》第133条及相关规定不尽合理。因此，有必要以未成年人侵权责任能力制度为切入点，探讨监护人对未成年人致人损害的责任的形态、委托监护时监护人的责任等问题。     

论食品安全事故中的赔偿责任人

发生食品安全事故,往往会涉及多个责任人,其责任是不同的。食品生产者承担严格责任并不意味着其他连带责任者也一样承担严格责任。销售者、广告者承担的是过错责任。《食品安全法》关于销售者的责任规定,有宽纵之嫌;而广告者的责任似乎又过于严厉。为求平衡,销售者、广告者的责任均以过错推定责任为宜。消费者向原材料提供者的索赔,也面临法律障碍。《食品安全法》关于销售者十倍赔偿的责任规定,是“纸老虎”,消费者要胜诉十分困难。农民个人作为农产品生产者,其责任监管十分欠缺,是急需研究和完善的一个领域。     

The Law: An Engine for Trade

The lecture traces the process of commercialisation in English law from its early stages to the present day. Until the mid-eighteenth century the law was in a process of integration , overcoming a judicial preoccupation with technicalities and procedures to form a body of rules which merchants could trust. From that point on the law has assumed a proactive role as an engine for trade. The nineteenth century is marked by legal facilitation , where new institutions were fashioned as a robust commercial framework for the Industrial Revolution. From the end of that century to the present day business law has served to regulate , building a sensitive framework for commercial development that balances the needs of commerce with the needs of society as a whole.     

后果主义审判:源流、思维特征与理论定位

对于后果主义审判的思维特质,理论界存在着支持和反对的声音。为了消弭人们对后果主义审判的理论误读,有必要对后果主义审判理论追根溯源。通过系统地梳理霍姆斯和波斯纳法律实用主义审判理论,尤其是波斯纳针对德沃金、卢班等人的批判意见所作的自我辩护,不难发现经由波斯纳系统阐述的后果主义审判理论,实际上是一种基于对不同类型、相互对立的系统性后果进行权衡的法律发现技术。     

Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession

Should transactional lawyers bear responsibility when their competent actions facilitate unlawful activity by their client? Or is a lawyer's only concern to act in the client's interest by providing her with the advice and support she seeks? The high profile failure of Lehman Brothers provides a unique opportunity to explore these questions in the context of the provision of a legal opinion by a magic circle law firm. A legal opinion which, although as a matter of law was accurate, was a necessary precursor to an accounting treatment by Lehman Brothers which was described by the Lehman's Bankruptcy Examiner as ‘balance sheet manipulation’. The article argues that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a tool‐kit whose application can be justifiably extended to the professional regulation of transactional lawyers.     

风险社会与侵权损害救济途径多元化

现代风险社会给人们带来更多的不确定性和不安全感,传统侵权法律制度在面对不断涌现的新型侵权行为以及灾难性、大规模的人身损害事故时存在局限性。对此,我国《侵权责任法》在功能定位、保障范围、加害事由、归责原则等方面的制度设计,对风险社会的现实状况和生活形态作出了回应,尤其强化了侵权法的救济功能。侵权法的这种制度变化改变了我国责任风险的原有形态;同时,在侵权法律体系内也不可能完全解决对受害人的赔偿和救济问题,由此给责任保险和社会保障制度提供了更大的发展空间。在以侵权法、责任保险和社会保障为主体的多元救济体系中,各项制度之间应注意协调,避免赔偿不足或赔偿过度。     

The Assessment of Gain-Based Damages for Breach of Contract

This article argues that there are two different measures of gain-based damages for breach of contract: the Wrotham Park measure and the Blake measure. The former is assessed by reference to the objective value of the benefit received by the defendant and the latter by reference to the defendant's subjective gain. In assessing Wrotham Park damages the courts apply a fixed formula, determining the price that a reasonable person in the position of the claimant might have demanded from the defendant at the time of breach for relaxing its rights under the contract. The Blake measure is different; it requires the defendant to disgorge the actual net profit received from the breach. Unlike the Wrotham Park measure, it deals only with positive and not negative gains. It is also limited by the doctrine of causation so that only those gains that are 'directly occasioned' by the breach are recoverable.     

Damages for Breach of Contract: Compensation, Restitution and Vindication

In this article we examine the role which vindication playsin contract damages. Vindication describes the making good ofa right by the award of an adequate remedy. We argue that, whilethe primary purpose of compensation is to provide an indemnityfor loss, an award of compensatory damages will neverthelessgenerally vindicate the right to performance of the contract.We go on to consider a distinct measure of damages, vindicatorydamages. These, we argue, are neither compensatory nor restitutionary,neither loss-based nor gain-based: they are a rights-based remedy.We then identify various situations in which the courts maybe seen to have awarded what are, in substance, vindicatorydamages. We conclude by considering the benefits which may followfrom recognition of the availability of vindicatory damagesas a contract remedy.     

国外主要自由贸易园区及其法律规制:评析与启示

国外主要自由贸易园区的核心特征一般包括:便利的地理区位;以获取经济利益为目标;以物流、贸易等服务业为主的综合产业结构;在贸易、投资、金融等领域实行自由政策;实行境内关外的海关监管制度。与国外主要自由贸易园区相较,广东自由贸易试验区既有共性也有差异性,其法律体系建设应基于异同之处,在管理体制、立法模式和立法内容等方面做出制度创新探索。     

空难概括死亡赔偿金性质及相关问题

空难事故中的概括性死亡赔偿金包括了被扶养人生活费、精神损害赔偿与单纯的 (狭义的)死亡赔偿等内容,应主要和优先用于被扶养人生活费之满足。在有剩余时依次作 为精神损害赔偿金与单纯死亡赔偿金,后者可作为遗产继承。     

Just-in-Time Justice: Globalization and the Changing Character of Law,Order, and Power

This article examines how economic globalization has dialectically interacted with the nation-state and legal order to facilitate the production of “just-in-time justice”—the increasingly flexible character of law, order, and power. Utilizing Chambliss’s analytic strategy, particularly his dialectical approach to lawmaking, I first examine the relationship between the global social order, economic globalization, and the changing architecture of nation-states. I then explore ways that the legal order has been flexibilized, including the creation of “states of exception,” the privatization of social control functions of the state, the development of transnational spaces for governance, and the widespread use of surveillance. My analysis of these transformations suggests that the greatest danger in the contemporary moment may be what we do not know, what is hidden from public accountability, beyond the public gaze. Importantly, this analysis also highlights that law continues to matter—or else there would not be such a press to ensure its disappearance.     

期望损害赔偿的实现:替代交易的研究

在损害赔偿法中,替代交易是一种有效的计算期望损害赔偿的方法,其已经得到各国国内立法以及国际条约或示范法文本的支持。替代交易相对于传统的期望赔偿或实际履行有独特的理论优势和操作性便利,如接近合同履行后的地位、增加确定性、阻止或最小化间接损失的社会成本、有效分配市场风险等等。替代交易的构成体现为实体要素和程序要素,其中实体要素中合理性最为重要,实践中有必要将替代交易分为搜寻和实际选择两个阶段,而且替代交易无需经由法院或非诉讼程序。替代交易是一种任意性救济方式,只适用于不履行的情况,同时在其适用上不限于商事交易和货物交易等。我国未来的合同法修改应当将替代交易予以制度化,以使期望损害赔偿更具现实力,实现合同救济的目的。     

The Politicization of Science and Technology: Its Implications for Nanotechnology

The development of nanotechnology intensifies challenges to the traditional understanding of how to pursue scientific and technological knowledge. Science can no longer be construed simply as the ideal of the quest for truth (i.e., "pure science"). Science has become the source of economic power and political power. In this paper, I argue that nanotechnology is a cardinal exemplar of "this politicization." At the same time, I assert that this new scientific ethos offers the possibility of a better integration of ethical and philosophical reflections at the core of scientific and technological development.