中美实用艺术品著作权保护比较研究——兼论我国实用艺术品著作权保护的路径

实用艺术品的著作权保护问题实质上是如何确立著作权保护范围及标准的问题。我国现行《著作权法》并未将实用艺术品作为受保护客体,但也并未将其排除在著作权保护范围之外。而美国在实用艺术品的著作权保护上于立法层面是非常清晰的,在《1976年版权法》中已明确将其列为受保护客体,美国法院的诸多判例也影响了实用艺术品著作权保护研究的方向。本文梳理了中美两国实用艺术品的著作权保护问题的历史沿革及现状,总结归纳了两国具有代表性的判例,以求通过对比提炼出两国著作权法及司法实践中存在的问题。美国的相关立法及其司法裁判经验对于我国实用艺术品的著作权保护具备重要借鉴价值。     

The Legal Subject in Althusser’s Political Theory

There are three dominant conceptual developments in Althusser’s work that suggest the significance of the subject. One is the perpetual work of ideology—its interpellation of individuals. The second is the primacy of the class struggle in relation to the state, and the consequential function of law and rights. The third is the materialism of the encounter as a process without subject. An examination of these three areas (in part, utilising a Foucauldian analysis of subjectivity and power relations) reveals the potentially and strategically important role of legal subjectivity in Althusser’s theory of the political.     

The Semiotic Fractures of Vulnerable Bodies: Resistance to the Gendering of Legal Subjects

While the turn to vulnerability in law responds to a recurrent critique by feminist scholars on the disembodiment of legal personhood, this article suggests that the mobilization of vulnerability in the criminal courts does not necessarily offer female drug mules a direct path to justice. Through an analysis of sentencing appeals of female drug mules in England and Wales, this article presents a feminist critique of the dispositif of the person and its relation to vulnerability. Discourses on drug mules’ vulnerability mobilize the trope of the colonial victim in need of protection, which is often translated into legal mercy. But mercy is rather an expression of biopower which inscribes not only fragility onto the bodies of drug mules by figuring them as exemplar paradigms of colonial subjectivity, but also reinvigorates the dispositif of gender implicit in the legal person. In this set-up, it would appear as if law and politics totalize the registers of life, in this case the contours of vulnerable body. The article suggests we must revisit the image of the wounded body in order to carve out a space for resistance. Drawing on Elaine Scarry and Judith Butler, it suggests vulnerable bodies are marked by a semiotic openness, which renders them subject to appropriation but also able to signify the precarity produced by the law through their resistance to representation.     

法律哲学的社会—政治基础——论马克思法律理论建构的“社会—政治法律哲学进路”

受从"哲学批判"到"政治经济学批判"之转变的影响,马克思法律理论的建构遵循了"社会—政治法律哲学进路"。这种进路的选择不仅不是马克思的疏忽,更是包含着马克思本人促进人类解放的伟大担当和理论旨趣。而且,这种进路触及到了法律的一个特征,即法律的非自主性(法律的社会—政治基础),对当下中国法律哲学的建构具有跨文化的普适性。     

Australian Rules: The Rise of Rights and the Demise of the Right

Over a number of years there has been a public debate in Australia over the place of legal rights in the struggle for Indigenous economic, social and cultural gains. Most Indigenous leaders have called for a rights agenda as a solution to Indigenous disadvantage. However, one leader has been a vocal critic of this approach. This paper considers the possibility that although the debates may fundamentally represent different views as to how best to improve conditions for Indigenous Nations, they also represent differing approaches to harnessing the support of mainstream Australia in a politically conservative environment. In coming to this position, I am reminded of the arguments put by proponents of the Critical Legal Studies movement in US, that rights are merely abstractions, and the counter by Patricia Williams, a Critical Race Theorist, that as a result, they can be framed in a variety of ways and can take the form required by the community in which they are found. In Australia, minority groups must find an indexically-open vehicle, fitting to the Australian rhetorical structure(s), to represent their struggle for economic, social and cultural rights. Tracey Summerfield is a white woman born in Perth, Western Australia. Thanks to Stephanie Monck, a Kungarakan/Warramungu woman from the Northern Territory, who provided assistance and feedback on an earlier version. The views expressed here are, of course, those of the writer alone.     

Unsecured lending and the indigenous economy in Australia and South Africa

Consumer credit is closely regulated in both Australia and South Africa. Nevertheless, unsecured lending often results in financial hardship in low‐income communities. One aspect of this picture is the impact of the consumer debt burden on the Indigenous economy, which is disproportionately affected by poverty in both countries. Here we juxtapose the comparative regulatory regimes and then contextualize the law using an inter‐disciplinary account of each Indigenous economy. We find through this law‐in‐context comparison that neither Australia nor South Africa has fully resolved the problem of Indigenous financial hardship. This mutual failure is confirmed by the recent Kobelt decision of the High Court of Australia and the drastic measures enacted in the South African National Credit Amendment Act 2019. One positive lesson that South Africa provides is that accommodating the Indigenous economy in financial regulation can promote and empower that sector.     

论犯罪故意在三阶层体系中的地位

在引入三阶层体系的背景之下,学界对我国《刑法》第14条中犯罪故意的体系性地位产生了诸多争议。在犯罪论体系的发展过程中,随着不法的主观化和罪责的客观化、规范化,心理性故意确立了作为主观构成要件的地位,而罪责故意与违法性认识(不法意识)则留在罪责层面,成为罪责的核心要素。无论是以不法论的基础还是从我国实定法的角度来看,心理性故意均应归属于构成要件而非罪责;在承认故意的双重地位的前提下,对容许性构成要件错误采取"法律效果转用的罪责理论"是迄今为止最为妥当的见解;关于故意与违法性认识(不法意识)的关系,我国《刑法》采取的是罪责理论而非故意理论。在三阶层体系之下,我国《刑法》第14条的犯罪故意应当区分心理性故意、罪责故意与违法性认识(不法意识),其中,心理性故意应当归属于构成要件,而罪责故意与违法性认识(不法意识)则归属于罪责。     

Strategies of Rupture

The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and its economy of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’, or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom (the focus here is on the tactics of rupture of the lawyer Vergès) and outside it, a return to a strategic understanding of law underlies its deployment as means of critique (‘simple’ or ‘immanent’) or object of confrontation rather than horizon of communicative exchange.     

Towards a European Law of Contracts

Abstract: European contract law has recently been the subject of increasing attention and intense debate. In addressing this issue, the following contribution departs from traditional analyses of the necessity, feasibility, and opportunity to harmonise national legislation on contractual relations. Instead, the author seeks to demonstrate that, with the objective of promoting the internal market and developing trade within it, EC authorities have long since given birth to a genuine European contract law. Beginning with the analysis of a body of EC directives, this article argues that the genuine nature of this law can be ascertained despite its limits or rather by taking these limits into account. The important rights granted to different contracting parties (consumer‐purchaser, consumer‐tourist, and certain professionals) stand in contrast to the formal incoherence and fragmented character of the legal texts. The article concludes that, in analysing the notion of European contact law, it is necessary to adapt a functional approach rather than a formal one, because the functional approach has dominated European integration and the European law of contracts since its inception.     

A Jurilinguistic Approach in Legal Education

The purpose of this essay is to advocate for including jurilinguistics in legal education. It presents jurilinguistics as a tool for understanding law and therefore supports continuing efforts to teach it. Knowing it is not unique, this essay proposes a jurilinguistic approach that focuses on the in-between of legal translation and comparative law. The proposal outlines the importance of educating in the capabilities of teaching a particular subject in a language other than their official one. The idea is to let the Other help to understand the Self. Particularly pertinent in transnational law programs, it is a multicultural approach that not only recognizes the other, but also embraces it.     

The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody

This paper demonstrates how legal processes utilized by institutions established to reverse the effects of colonization, can continue the colonizing agenda. The processes reflect 'deep' rather than 'de-'colonizing practices. The Australian Royal Commission into Aboriginal Deaths in Custody (RCIADIC), which tabled its National Report over a decade ago and which was heralded as the inquiry which would transform race politics for Indigenous Australians, is used as an example of a 'decolonizing' institution that inadvertently adopted deep colonizing practices. Using data from interviews with 48 Indigenous and non-Indigenous people who were associated with the RCIADIC, this paper expands Deborah Bird Rose's theoretical construct of 'deep colonizing practices' and illustrates how difficult it is to shift hegemonic legal processes and beliefs, despite intentions to empower and embrace Indigenous views.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

司法中的主题词

法律主题词指称的是法律要求的、典型的社会事实 ,它与社会事实之间是词与物的关系。在司法中 ,法律关注的是指称行为性质的主题词 ,而不是具体行为的细枝末节。法律主题词把现实生活中有鲜明个性的行为归结为同一种抽象行为 ,它虽然是人为创造的 ,但有重构社会生活的力量。     

Frauds and fakes in the Australian aboriginal art market

This article examines the topic of problematic art in the Australian Aboriginal art market. For Aboriginal people art plays an important social, economic and political role. It has also become a major source of income for many. Thus when the integrity of that art is challenged by allegations of fraud and deception it is imperative to explore the veracity of these claims and the responses made to them. In the article particular attention is devoted to those responses made through both the Australian criminal and civil systems of justice. This analysis shows that there are special problems associated with establishing the authenticity of Aboriginal works of art which tend to hamper the prosecution of fraud cases while a dearth of expertise and interest in art fraud at large among Australian law enforcement bodies is a further barrier to effective action. The conclusion is reached that at present the Australian legal system is poorly equipped to deal with frauds and fakes in the Indigenous art market—a situation which will take time and more imaginative solutions to remedy.     

The Law and the Desert: Alternative Methods of Delivering Justice

This article considers the way in which the Federal Court of Australia has adapted to the native title jurisdiction. Here we see how common law approaches to law and procedure challenge, and are challenged by, the culture of indigenous peoples and customary law. It conveys the risk of cultural violence in a balancing of legal and cultural norms and shows how access to justice debates reach beyond debates about funding and advice into more fundamental issues about legal process and the nature of substantive law. The Court's approach to facilitating access to justice goes deeper than essential procedural changes. Its approach suggests a cultural change within the Court.     

‘Legal Critique’: Elements for a Genealogy

While teachers and students of law tend to take for granted that critical legal campaigning originates in the late 20th century, many historians suggest that the summons of law and its state of accusation before the tribunal of critique dates back to the days of the Enlightenment. I am arguing, in contrast, that, in the West, the history of legal critique is by no means shorter than the history of law; that Western legal evolution embraces and supposes anti-legalism or ‘antinomianism’ since the days of early Christianity and throughout; that, conversely, an adequate assessment of Christianity must stress its character as an anti-institutional, anti-legal, and anti-religious campaign; that the standard view of Humanism, Enlightenment, and Modernity, which tends to foreground their antagonism to Christian institutions and to deny their nature as instantiations of the Christian campaign, misses the crucial point both about them and about Christianity (and, implicitly at least, about geopolitics); that key concepts of political modernity thrust their roots, not only and not most importantly into Political Theology, but rather into Saint Paul’s legal ‘new deal’; that, far from giving rise, as intended, to a deactivation of law, Paul’s action has resulted, instead, in the interlinking build-up of a militant denial of law on the one hand, and an emerging intensification of law on the other hand. Let the reader be warned that the article strings together a bouquet of snap-shots from a work in progress.     

Is there a role for the application of customary law in addressing aboriginal criminality in Australia

In the past decade, there has been no shortage of empirical evidence that supports the poor health, education, and employment prospects for Aboriginal Australians. Moreover, Aboriginal people are far more likely than non-Aboriginal people to be drawn to the attention of police and taken into custody. Their presence in the criminal courts is disproportionately high and they are vastly over-represented in prison. Commission after commission and study after study have concluded that Indigenous Australians are at vastly greater risk of threat to life, victimization, and health than non-Indigenous Australians. This essay argues that there are grounds for greater recognition of Aboriginal customary law as a means of addressing the malaise. It reviews the political and legal climate in which such responses to Aboriginal criminality are currently being addressed. Presented at the Academy of Criminal Justice Sciences Conference, Louisville, Kentucky, 13 March 1997. The author acknowledges the help of Paul Martin, legal practice librarian, University of South Australia and the resources of Graceland College.     

民法上的人及其理性基础

受康德、黑格尔哲学思想的影响,法律主体被定格为“意志—主体—理性”的抽象图式。但是,理性人是为了完成民法典体系的构筑而通过法技术的抽象方法塑造出来的一个客观化的人像。因而,个人从本质上不同于民事主体。法人只能从经济的合理性而不能从哲学上寻找到法人纯粹是实证法上的规范结果,有必要对人与人之外的存在加以区别而给予符合人的处理。     

论人格权的本质——兼评我国民法草案关于人格权的规定

自然人人格是由宪法赋予自然人的一般法律地位 ,不同于作为民事法律关系主体资格的权利能力。人格权为自然人获得法律强制力保障的一般法律地位从权利角度进行的表达 ,自然人直接依据宪法生而有之 ,并非由民法赋予。人格权在理论和实践中的私权化 ,系由民法形式逻辑结构需要以及团体人格的塑造等原因引起 ,反映了一种狭隘的民法实证主义观念。人格权在现代社会的发展及一般人格权的创制 ,导致私权化的人格权向宪法权利的回归。团体人格是对自然人人格在民事主体资格意义上的模仿 ,法人不享有人格权。