The prosecutor and human rights – from the general to the particular

It is not unusual that one or all parties commit a genuine mistake when making contracts. While there is the strict general duty under the law to respect agreements, there equally exists the duty for courts and tribunals to be fair and to render commercial justice in the factual matrix of cases before them. In national legal systems and transnational law regimes, rescission for mistake on economically efficient and just terms is embedded in contractual obligations. The Solle v Butcher (1950) doctrine, which represented the English law approach, was rejected in The Great Peace (2002). Potential conflicts and crises now exist in commercial relations and international dispute resolution when ‘English law’ is the applicable law. This extends to jurisdictions where English decisions are highly persuasive. This article examines the correctness and effect of The Great Peace decision on the doctrine of equitable rescission for genuine mistake as propounded in Solle v Butcher, and possible clarifications needed after the complications brought by The Great Peace. It analyses the conceptual importance of the remedy of equitable rescission for mistake in commercial transactions, and identifies serious substantive errors of law by The Great Peace court. Finally, it provides other effective, fair and efficient legal methods that remain available to avoid the weaknesses of the decisions.     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

The clash of rights： Sexual violence and ethnic prejudices

The global spread of the recent financial crisis reveals the crisis of the social model at the base of Western societies. This can be seen from the increased social inequality and poverty, linked to increasing rates of unemployment levels within the so-called advanced capitalistic society. These societies, particularly the European ones, are interested at the same time in the migration and acquire the status of multicultural society. The mixture of the two phenomena, the economic and social crisis on the one hand, the increasing of migration flows on the other, led to deep divisions in that societies, whose consequences are felt by the most vulnerable groups： migrants and women. The associations complain of the increased exploitation of migrant labour, which creates resentment in the population, the unions complain the most violent fallout of the crisis of the labour market on women than men. In the Italian context occur that the two forms of discrimination have been dramatically intertwined： the public was captured by a sequence of shocking rapes of women by neo-communitarian citizens. The panic induced by the media has prevented a proper reflection on what was happening, crediting a model of criminalization of foreigners and increasing perception of insecurity in women. The scenario problematic from a legal standpoint, to which this article addresses, is a dangerous polarization between the protection of freedom of women and the respect for the social dignity of migrants. In relation to this scenario highly critical, in which is erroneously included women as a minority in conflict with another minority-migrants, the article aims to identify in a comparative way the best tools to prevent the ethnicization of gender violence.     

Redressing the imbalanced political market for health policy: a role for the state attorney general?

In current discussions of "procompetitive" approaches to health policy, the enforcement of antitrust laws in health care markets is a strategy that has attracted increasing attention: the filing of consumer-oriented health suits provides a means to "redress" the typically imbalanced "political market" in health policy. This study examines an important aspect of the antitrust enforcement process, the decision by a state attorney general to undertake an aggressive antitrust enforcement program in the health area. Three variables were found to explain this decision: the political needs of a "politician-supplier," the organizational resources of a strategic institutional position, and the availability of a relatively favorable policy arena. An assessment of the future role of state attorneys general in this area suggests that their health antitrust initiatives will increase, but that various political and resource constraints are likely to inhibit their aggressiveness in pursuing these actions.     

The application of the Khiyar al-‘Aib (option of defect) principle in on-line contracts and consumer rights

This paper scrutinises the legal protection of consumer rights in on-line contracts through the application of Khiyar al-??Aib (option of defect). Khiyar al-??Aib is a legal Islamic mechanism by which, one party, both parties or even a third party can nullify a contract, electronically or conventionally. Khiyar (option) means the authority to nullify a contract and Aib means defect. In fact, it is a right given to the purchaser to cancel the contract if he discovers that the object acquired has defect that diminishes its value. In on-line contracts, the consumer has no direct contact with the merchant and cannot easily verify the quality of the goods, thus creating a situation in which contracting parties are not at equal bargaining strength. Therefore, application of Khiyar al-??Aib (option of defect) would be helpful in protecting consumer rights in the virtual world. This paper explores the Islamic principles by taking Iranian laws as well as the European law as a point of reference.     

Crime‐Control in the Post‐Wall Era: The Menace of Security

Over the past ten to fifteen years, an increasing number of social issues have become linked, and then subordinated, to security policy. This policy area has witnessed a paradigm shift, with the emergence of a new security mentality. The crumbling of the walls built up during the Cold War, and the collapse of the Soviet empire, meant the disappearance of the East versus West polarity. And as this world order, based on a balance of terror, passed into history, the nature of the global threat situation was transformed. The antagonisms of the Cold War had hardly had time to cease creating fear before new threat images emerged onto the scene. Unlike the Cold War situation, where world peace was threatened by a frenetic arms race between two highly concrete superpowers, the perceived threats of the 1990s became increasingly vague. The military menace was superseded by what was said to be a much more diffuse criminal threat. For what is it that lies concealed behind such concepts as ‘cross‐border crime’, ‘organized crime’, ‘terrorism’ and the like? Previously, security policy analysts had been able to localize the source of a given threat with precision. Their benchmark was now gone, however. Once the established geographical demarcations between Us and Them ceased to apply, it was found that the enemy might instead be in our midst.     

The Trademark Protection in Franchise——From the angle of franchisor's rights protection

特许经营的发展是以知识产权的集中许可和使用为其基本特征,商标权是特许经营权的核心内容之一.以商标权为核心的知识产权在特许经营中体现了重要的价值功能.由于特许人的维权意识不足,国内相关立法不够完善,经常发生针对特许人商标权的侵权行为.针对以上情况,结合具体的案例,分析特许人商标权遭受侵权的表现形式和原因,提出特许人维护其商标权的应对策略.