中国代孕规制的模式选择

代孕是一个法律、伦理上的共同难题,国外存在着私法自治型、政府管制型、完全禁止型三种规制模式。中国政府采取了完全禁止的规制模式,却未能取得、也很难取得预期的效果。代孕是实现生育权的一种方式,却可能与代孕者、小孩的人格尊严和公序良俗相抵触。国家对代孕的规制,应该本着基本权利的基本原理,考量社会的接纳程度,在生育权、人格尊严与公序良俗之间作出适当的权衡,从而抛弃完全禁止的规制模式,履行其对多种基本权利的保护义务。     

Meta Risk Management and Responsive Regulation for Tax System Integrity

Risk society and reflexivity as themes in contemporary sociology are brought together in a concrete way in the concept of meta risk management. Two case studies of the risk management of corporate risk management systems by the Australian Taxation Office are used to argue that meta risk management can be a cost-effective and responsive regulatory strategy, at least in the context of a complex risk environment such as business taxation. Meta risk management is a promising strategy when risks are volatile and difficult for the regulator tocomprehend when the risks are effectively under the control of an organization over which the regulator has leverage.     

Criminal Law,Parental Authority,and the State

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment.     

无罪推定原则的价值选择与理念调适

无罪推定原则在我国是否已经确立尚在争论中。无罪推定体现的是法律价值选择,包括审判的公正性、权威性,社会秩序的稳定性和刑事被追诉者的正当权益保障。无罪推定本身不具有阶级性,与我国实事求是原则和打击犯罪的要求一致而不矛盾。期望修改刑事诉讼法时予以明确。     

我国海峡两岸三地人体损伤程度鉴定之比较

我国海峡两岸三地的司法历史、背景存在许多差异,立法的根据也有诸多不同,因此,对于人身损害案件损伤程度的认识存在明显的区别。认识两岸三地损伤程度的鉴别、鉴定程序的不同之处,有利于我们互相借鉴,更准确、规范地完成人身损害案件的鉴定工作。     

Making the State Responsible: Intersex Embodiment,Medical Jurisdiction,and State Responsibility

Through consideration of new developments in the United Kingdom's intersex policy, this article traces the ways in which responsibility is produced, naturalized, and avoided by individuals, institutions, and the state. Jurisdiction is identified as a barrier to the attribution of responsibility that must be overcome to achieve progress in relation to the needs of intersex people. By bringing together jurisdictional analysis and vulnerability theory, this article demonstrates how the state has traditionally abrogated responsibility by compartmentalizing specific practices as governed by medical authority. It highlights that such accounts mask the role of the state in the creation of jurisdiction and the ways in which governance is conducted. Challenging these boundaries allows vulnerability theorists to move the state towards greater levels of responsibility. By combining these theoretical tools, the article enhances the practical utility of vulnerability theory and advances an important agenda for intersex people.     

Bodily memory: Introducing immigrant organizations and the family

This is an article about war survivors who ended up in migration in the aftermath of World War II: former Division soldiers from Poland and former Ostarbeiterinnen from the Soviet Union who settled in Belgium. It analyzes how these migrants dealt in their post-war lives with experiences of harm to their bodies undergone during the war. Often, attempts to ascribe meaning to the physical and/or psychological remnants of this harm were not made through words, but through non-verbal performances. However, such bodily memory could also, consciously or not, become socialized. In this article, I investigate the performance of bodily memory over time within two of the migrants' social entities: immigrant organizations and families, focusing in particular on their interaction.     

Bodily memory: Introducing immigrant organizations and the family

This is an article about war survivors who ended up in migration in the aftermath of World War II: former Division soldiers from Poland and former Ostarbeiterinnen from the Soviet Union who settled in Belgium. It analyzes how these migrants dealt in their post-war lives with experiences of harm to their bodies undergone during the war. Often, attempts to ascribe meaning to the physical and/or psychological remnants of this harm were not made through words, but through non-verbal performances. However, such bodily memory could also, consciously or not, become socialized. In this article, I investigate the performance of bodily memory over time within two of the migrants' social entities: immigrant organizations and families, focusing in particular on their interaction.     

Choice,Discrimination, and the Motherhood Penalty

Recent studies have documented substantial penalties associated with motherhood and suggest that discrimination plays an important role in producing them. In this article, I argue that the degree to which motherhood is conceptualized as a choice affects the penalties associated with making this choice. Two methods are employed to evaluate this argument. The first method is an analysis of state differences in the wage penalties for motherhood, in which hierarchical linear modeling is used with data from the 1988–2004 Current Population Survey. The second method is a hiring experiment in a highly controlled setting. The wage analysis shows that, net of the usual individual and state‐level factors that affect wages, mothers are penalized more in states where motherhood is perceived to be a woman's choice. The hiring experiment distinguishes between productivity‐based and discrimination‐based explanations for the penalty and provides strong evidence for a causal relationship between perceptions of choice and discrimination against mothers.     

挫折与修正:风险预防之下环境规制改革的进路选择

风险预防作为基础性原则正在主宰着法律体系的变革路向和精神维度,引导着环境规制从危险规制向风险规制转变。在环境规制实践中,风险预防存在纲领规定模式、规范裁量模式和制度规范模式三种适用类型。环境规制的格局正围绕着它们不断地调整、改进,但也在规制立法和规制实施层面呈现出阶段性挫折的一面。这种挫折的根源在于当前的环境风险规制采取了一种封闭式的技术规范进路。对此,应借助商谈式程序进路对其进行修正和补充,确立以规制立法+规制决策+规制商谈为主轴的环境风险规制新范式。在风险预防之下,这种双重复合进路对我国的环境规制改革实践具有重要借鉴意义。     

The Challenge of Institutional Integrity in Responsive Regulation: Field Inspections by the Australian Taxation Office

Based on responsive regulation, the Australian Taxation Office (ATO) Compliance Model was developed as a way of dealing with the complexities of the Australian tax system. This article demonstrates some of the challenges that come with introducing responsive regulation into a bureaucracy such as the ATO. Selznick's ideas of institutional integrity provide a conceptual framework that allows the regulatory agency engaged in responsive regulation to emphasize voluntary compliance and the building of positive relationships with the regulatee, while simultaneously ensuring that non-compliance is both detected and dealt with. Using evidence from a qualitative study of ATO "walk-ins" with used car dealers, the article demonstrates the unintended consequences that can occur without institutional integrity both at the level of design and at the level of everyday ATO field-officer practices.     

论电商平台“二选一”行为的法律规制

与传统经济一样,数字经济背景下的强制性"二选一"行为不是"本身违法",但如果行为人使用这种手段,严重损害竞争对手实现最低规模经济的能力,或者阻止新企业进入市场,就会在很大程度上妨碍市场竞争。考虑到进入市场存在着经济、技术、数据等各种障碍,特别是网络外部效应,我国电商平台已经高度集中。为了维护市场的竞争性,使商户和消费者充分感受电子商务的好处和便利,竞争执法机关应当保证平台商户的多归属,即任何平台经营者都无权强迫商户只能在一个平台上交易。同时,考虑到电子商务的特点和中小商户对平台中介的依赖性,我国有必要制定规范中介平台与商户之间交易关系的专门法,并完善《电子商务法》第35条。     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

Regulatory Choice for Alternative Modes of Regulation: How Context Matters

The growing role of alternative modes of regulation (self‐ and co‐regulation) gives rise to major questions about regulatory choice between available governance mechanisms. Strategic policy instruments such as regulatory impact assessment guidelines (RIA) typically suggest assessing the suitability of alternative modes of regulation but they hardly specify assessment criteria. This article identifies contextual factors that should be included in any effort to predict when alternative regulatory arrangements are likely to emerge and to be effective. To demonstrate the value of the approach, it is applied to an analysis of self‐regulation in the domain of content‐rating in the audiovisual industry.     

遗传资源获取管制和惠益分享制度的立法模式选择

建立遗传资源的获取管制和惠益分享法律制度是我国目前环境立法中的一个重要课题,如何确定立法模式、规范遗传资源的获取途径及惠益分享条件和内容是难点.制定以专门立法为主、修改既有法律为辅的双层立法模式体系,并对其中的主管机构、遗传资源的获取步骤、惠益分享等制度提出具体安排,是解决这个问题的有益尝试.     

Measuring the Difference Between Parental Alienation and Parental Estrangement: The PARQ-Gap

Parental alienation (rejection of a parent without legitimate justification) and realistic estrangement (rejection of a parent for a good reason) are generally accepted concepts among mental health and legal professionals. Alienated children, who were not abused, tend to engage in splitting and lack ambivalence with respect to their parents; estranged children, who were maltreated, usually perceive their parents in an ambivalent manner. The hypothesis of this study was that a psychological test—the Parental Acceptance–Rejection Questionnaire (PARQ)—will help to distinguish severely alienated from nonalienated children. The PARQ, which was used to identify and quantify the degree of splitting for each participant, was administered to 45 severely alienated children and 71 nonalienated children. The PARQ-Gap score—the difference between each child's PARQ: Father score and PARQ: Mother score—was introduced and defined in this research. Using a PARQ-Gap score of 90 as a cut point, this test was 99% accurate in distinguishing severely alienated from nonalienated children. This research presents a way to distinguish parental alienation from other reasons for contact refusal. The PARQ-Gap may be useful for both clinicians and forensic practitioners in evaluating children of separating and divorced parents when there is a concern about the possible diagnosis of parental alienation.