关于MP3网上下载问题的探讨

从MP3音乐著作权的法律关系人手,剖析MP3网上下载行为所涉及的各类主体所应承担的权利义务关系,进而探讨如何解决网络MP3纠纷,以实现数字时代的新型利益平衡.     

Universal Legal Concepts? A Criticism of “General” Legal Theory

Abstract. General theory of law (general jurisprudence, allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century—a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal systems? And, above all, in what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions—although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by placing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of law.     

法律漏洞类型化及其补充——以物权相邻关系为例

基于发现法律漏洞和填补法律漏洞的不同方式,应把法律漏洞分为禁止拒绝裁判式漏洞、目的漏洞和原则漏洞三种大类。在具体操作层面,基于应然判断的逻辑形式,类推在逻辑上并非基于案件的实质相似性,而是一个先抽象反思(归纳)再演绎的过程;目的性扩张为类推的一种特殊类型;总体类推应属于目的漏洞而非原则漏洞。在漏洞确认和漏洞填补两者的关系上,目的漏洞和原则漏洞没有本质不同,即在这两者漏洞确认和漏洞填补都并非是一个完全同一的过程。运用民法不动产相邻关系中的具体例子,来具体说明法律漏洞补充的理论,从而也对物权法不动产相邻关系相关规范的具体解释适用提出了一些新的见解。     

再论我国公立高等学校之法律地位

我国公立高等学校的法律地位问题日益成为教育法制的焦点。本文认为,高等学校在不同方面具有不同的法律地位:其在行使法律、法规授予的行政管理等职权时,是行政主体;在接受有关行政主体监督、管理时,是行政相对人;在管理有关资产以及进行平权性质的活动时,是民事主体。此外,公立高校与其内部群体如教师、学生等存在多种复杂的法律关系。因此,我们把握公立高等学校的法律地位需要一种综合性的视角,并注意具体区分授权基础、行为类型和事务性质。     

浅谈高校教学管理人员的职业道德修养和法律意识

本文分析了我国高校教学管理人员职业道德修养和法律意识方面存在的问题,指出应具备的职业道德修养和法律意识,并针对存在的问题,从严把用人关,细化岗位职责;创建学习型管理组织,不断更新知识结构;重视法律知识学习,强化法律意识三个方面提出对策。     

Popular Music and Copyright Law in the Sixties

Copyright and its relationship with popular music is one of the most disputed issues amongst music and copyright scholars. While some have accused copyright of being blind (or deaf) to the particularities of popular music, others have defended its significance within the industry. This article contributes to this debate by tracing the networks of connections between lawyers, musicians, and clerks that emerged in a formative period in British pop music (the Sixties). It considers how their collaborative efforts and strategies to present evidence in copyright infringement trials were articulated in an attempt to influence music copyright infringement tests in Britain. By highlighting the concrete geographical and temporal contexts from which these networks emerged and their particular contingencies, the article also casts a new light on the impact of the legal profession on copyright, showing a practice‐oriented and historically situated way of observing differences between French and British copyright systems.     

生态补偿的理论蕴涵与制度安排

在不同学科的研究视野中,生态补偿有着不同的理论蕴涵。生态学理论所探究的生态效益补偿为法律制度中的生态效益补偿指出应遵循的一般规律;经济学上的生态效益补偿则从成本效益的角度揭示了法律制度中的生态效益补偿的障碍根源和应当解决好的问题;法学则以公正作为首要的价值目标,体现在生态补偿制度中,以权利义务的平衡与协调为逻辑起点,彰显了浓厚的人文关怀。生态补偿法律制度的应然逻辑构成要素应当包括生态补偿的主体、补偿的标准和补偿的方式等。     

实施中的“软”“硬”之法:规则的不服从与服从

法律在实施中既有执行软弱的问题,也有执行过于刚硬的问题。如何避免执法者和守法者在服从法律规则上的过于僵硬或机械?主要可从两个方面解决:一是处理好原则与规则的适用关系。当规则与原则一致时,先适用具体的规则;当规则与原则不一致时,应优先适用原则。二是公民的抵抗权问题。法律应赋予公民出于道德良知的判断(或特殊行业的执业者出于职业道德)而故意违反现行法律规定的权利。总之,法制应该具有"温情"的一面。     

Interaction and basic rights in an international perspective: an introduction

The effective enjoyment of basic rights largely depends on communicative processes and other forms of social interaction. Traditional conceptions of basic rights do not explicitly address this relevance of social interaction, though. Legal conceptions of basic rights rather focus on the right to a particular discretionary, but isolated and individual behaviour. This article points out the different established dimensions of basic rights protection and points out the relevance of social interaction for the enjoyment of basic rights as well as the legal consequences in different jurisdictions.

     

Out of the Fly-Bottle: Conceptual Confusions in Multilingual Legislation

Conceptual confusions permeate all forms of intellectual pursuit. Many have contended that multilingual legislation, i.e., one law enacted in different languages, is unviable when carried out by means of translation. But not many have realized that the same would also be true of drafting if their contention could be justified. My involvement in the translation of Hong Kong laws into Chinese in the run-up to 1997 exposed me to a whole world of myths and misconceptions about legal translation arising from our failure to command a clear view of the workings of language. Over the years I have endeavoured to come to grips with the problems inherent in legal translation, showing that the arguments against the possibility of exact translation, against the possibility of achieving equivalence between different language texts of the law, and against the possibility of bridging the conceptual gap between legal terminologies in different languages, are all ill-grounded and misguided. There are indeed enormous difficulties in drafting and translating multilingual law, but they are essentially of a technical nature, by no means theoretically irresolvable. The viability of multilingual legislation is simply grounded in our innate communicative intention to use signs and symbols to convey meaning. As language users, we are capable of making language work for us for any particular purpose. Just as we can translate the rules of chess from one language to another whereby players speaking different languages can play the same game called “chess”, we don’t see why we can’t do the same with multilingual legislation. The door has always been open!     

法律论证理论述评

法律论证理论要解决的核心问题是：如何使人确信某一法律评价或法律决策是正确的？解决这一问题的进路主要有三条：逻辑分析的进路,修辞学的进路和对话（论辩）的进路。通过从问题意识角度梳理这三条路径迄今为止的发展史,可以说：第一,他们都没能解决法律论证理论的核心问题。第二,其原因是：他们都回避了对这样的问题的解决：一个正确的法律评价或决策的实质标准是什么？如何证立？第三,德性伦理学是可能解决法律论证理论问题的新路径。     

略论当前我国法学教育体制存在的问题

我国的法学教育体制，特别是法学学位体系和人才培养模式，正面临着急迫的问题与挑战，亟待解决。其具体表现在如下几个方面：法学学位项目层次和种类过多；法学学位体系之间相互交叉，职责界限不清，管理混乱；缺乏法学主学位，过分重视高学历法学教育，人才培养同质化严重；学位教育项目与法律职业准入相互脱节；法学教育规模急剧扩大与确保法学教育质量之间矛盾增大；课程体系与课程设置不合理，法学各专业教学特色不明显；法学人才的招录体制和分配去向存在着地区间严重不平衡；全球化法学教育的挑战与国内法律人才国际视野的局限性。     

Some Remarks on the Notions of Legal Order and Legal System

Abstract
In this paper, the authors discuss some problems related to the existence and identity of legal norms and legal systems. Firstly, two criteria for identification of legal norms are analyzed: linguistic criteria and non-linguistic criteria. Secondly, the dynamics of legal systems and the distinction between legal system and legal order are examined (close to Raz's distinction between momentary legal system and legal system). Based on the logical relations of membership and inclusion, two ways of analysing the change of legal systems are suggested. Thirdly, a criterion for identification of legal orders (from Bulygin) is discussed and it is shown that this criterion does not explain adequately, on the one hand, the existence of some norms, i.e., customary norms; and, on the other, the existence of invalid norms; i.e., unconstitutional norms. The main conclusions of this paper are: (a) the concepts of legal system and legal order could not explain the existence of law in a given society; (b) the concepts of legal system and legal order could be considered models of rational normative systems.     

Requirement‐Sensitive Legal Moralism: A Critical Assessment

Requirement‐sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non‐moral factors can defeat this. Using William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed.     

Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims‐Making for First‐ and 1.5‐Generation Immigrants

This article examines the legal consciousness and incorporation experiences of undocumented immigrants in the United States. Although this population may be disaggregated along several axes, one central distinction among them is their age at migration. Those who migrated as adults live out their daily lives in different social contexts than those who migrated as children. Therefore, although all undocumented immigrants are legally banned, their identities, sense of belonging, and interpretation of their status vary. Based on ethnographic observations and in‐depth interviews of Latino undocumented immigrants from 2001 to 2010, I examine how illegality is experienced differently by social position. The findings suggest that the role of life‐stage at migration and work‐versus‐school contexts importantly inform immigrants' legal consciousness. Fear predominates in the legal consciousness of first‐generation undocumented immigrants, while the legal consciousness of the 1.5 generation is more heavily infused with stigma. Fear and stigma are both barriers to claims‐making, but they may affect undocumented immigrants' potential for collective mobilization in different ways.     

法律效力理论中的实效性原则

法律拥有效力部分地依赖于其所在的法律体系具有实效,即得到人们大体上的服从。这就是法律效力理论中的实效性原则。对于各种类型的法律效力理论来说,法律效力标准都需要来自法律本质、功能的道德原则的支持。表面上,作为纯粹事实的实效似乎与各种类型的法律效力理论都不协调,但实质上,法律效力依赖于实效是源于"法律的任务应该交给最具实力的人或机构来完成"这一道德原则。根据该原则,实效难题可以得到很好的解决。     

Legal origin and intellectual property rights: an empirical study in the prerecorded music sector

This article aims at identifying differences in copyright protection in prerecorded music markets, and more specifically the impact of the legal system on the demand for original music CDs. To this end, we use a panel of 28 OECD countries in the period 1999–2005. After testing alternative specifications, our results show that differences in legal origin lead to differences in intellectual property rights enforcement. Our results also consistent with previous studies that find that common law countries have more secure property rights.

Idle musical community: Dischord Records and anarchic DIY practice

Originally formed in 1980 to document the Teen Idle’s Minor Disturbance EP, Dischord Records has continued to document and support the local Washington, DC, hardcore punk music scene for over three decades through an anarchic Do-It-Yourself (DIY) ethic. Dischord’s DIY ethic affords a manner of music documentation, in contrast to production, and community formation that reconfigures the space of dominant commercial production and exchange. Dischord’s business practices, such as forming agreements with bands via handshake instead of legal contract, allow the label to resist consumerism and exploitation of both artists and audiences while fostering a creative space, where profit does not dictate the sound of the music or produce a commodified musical product. Ultimately, Dischord’s political potential is in its ethics to the extent that anarchic DIY practice constitutes a sort of inoperative community of circulation rather than production and profit. The implications of these practices relate to the ways in which music constitutes social and communal relations and its radical possibility of reconfiguring a space outside of commercial exchanges, whether in the political sphere or in the digital realm.