美国企业犯罪的审前转处协议研究

美国针对企业犯罪建立了特殊的审前转处程序,办案检察官可以与涉罪企业签署暂缓起诉协议和不起诉协议,如果企业能够在考察期限内完成协议下的义务,则不会被审判和定罪。在美国经济危机时期,该制度较好地为企业的生存和社会公共利益的维护提供了保障。该制度以美国司法部内部的政策性文件为依据,赋予了办案检察官较大的自由裁量权,法院基本无权干预。美国理论界的争论主要围绕三对冲突关系:社会公共利益维护与企业“大到不用判刑”特权的冲突、检察官的转处裁量权与程序正义的冲突、司法部内部行为与立法/司法管辖权的冲突。在我国面临企业犯罪处理困境的当下,该制度及其相关理论能够为我国“司法行政部门帮扶企业”政策的践行提供经验借鉴。     

The “state-led-economy” issue in the BIT negotiations and its policy implications for China

The state-led-economy provisions in the U.S. model BIT, which was released in April 2012, aims to impose strict regulations on the SOEs and exert great influence on state-led economy model. China and the U.S. are now in the midst of negotiating a BIT, and the U.S. government insists on negotiating on the basis of its 2012 model BIT. If China is to accept the 2012 U.S. model for the proposed BIT between the two nations, unprecedented international obligations will be placed in the field of international investment. In this context, in order to provide a reference for the BIT negotiation, the author will analyze, from the perspective of normative jurisprudence, which economic activities are included in the scope of state-led economy provisions, whether China should accept the clauses and the possible impact of accepting it. China’s economy has indivisible relationship with State-owned enterprises (SOEs). At present, most of these SOEs have clustered in those sectors that play crucial roles in the national economy such as energy, telecommunication and finances. Despite several rounds of reform on the SOEs aiming at a separation of governmental functions from corporate management, and a modern market-oriented governance structure, Chinese SOEs remain monopolies or de facto monopolies with exclusive access to many important industries relevant to national economy and people’s livelihood. Further, SOEs can enjoy a lot of privileges in their operation, some even have certain regulatory authority which is supposed to be exercised by the government. This kind of economic model is called State-led economy. The 2012 U.S. model for bilateral investment treaties (BIT) is characterized by the inclusion of the state-led economy provisions, which means that there are more restrictive regulations governing SOEs and their special treatment, and countervailing their competition implication in the host country and their home country. Apart from creating a fair and impartial environment for the investors, this international investment regime, represented by 2012 U.S. BIT model, is in some way, intended to alter the host country’s economic governance regime. In accordance with the decision of the 5th round of the U.S.–China Strategic and Economic Dialogue, both parties are dedicated to proceeding the BIT negotiations (The 5th Round of the U.S.–China Strategic and Economic Dialogue: broad consensus achieved and positive progress made, People’s Daily, p 3, 2013). The U.S. government has insisted that they would base its 2012 model as a blueprint of BIT text negotiation. Seemingly to illustrate, the 6th round of the U.S.–China Strategic and Economic Dialogue has reached a consensus that an earlier launch of negotiation on the negative list will be expected in 2015 (The 6th Round of the U.S.–China Strategic and Economic Dialogue: broad consensus achieved and positive progress made, People’s Daily, p 3, 2014; Ministry of Commerce of the People’s Republic of China, The 14th Round of the U.S.–China Investment Treaty Negotiation is Held in Washington, D.C., 2014). If China is to accept the new BIT model, it will bring China a bundle of increasing obligations under this system and an unprecedented impact on China’s mode for economic development. As a contracting party, China will have to carry out a comprehensively economic reform to comply with the disciplines specified in the BIT. It is also understandable that the incorporation of the state-led economy provision in the China–U.S. BIT will in turn accelerate the domestic economic reforms. In this context, research on the issue of state-led economy in the BIT negotiation will be of significance to China’s dealing with the core issue in the BIT, China’s fulfillment of treaty obligations and its promotion of domestic economic reform via BIT negotiations. In order to provide a reference for the BIT negotiation, the author will identify from the perspective of normative jurisprudence, the economic activities that fall within the scope of state-led economy provisions, project the possible impact of state-led economy provisions and how China should handle negotiation surrounding the state-led economy issue.

     

Explaining China's approach to investor-state dispute settlement reform: A contextual perspective

China's approach to ISDS reform is widely perceived as undecided and ambiguous. This paper provides the first detailed analysis of China's submission to the UNITRAL Working Group III and situates China's approach in the context of global dialogue of ISDS reform and competing reform proposals. The paper shows that China's open, flexible, and evolving approach to ISDS reform could be better understood by a contextual evaluation of the pertinent factors which have contributed to its formation. Moreover, this paper explains why China did not sign up to the EU's investment court system (ICS) proposal in the EU-China Comprehensive Agreement on Investment (CAI). Lastly, the paper argues that China should reconsider its attitude towards the ICS in the CAI context and that the EU's recent suggestion that the envisaged multilateral investment court may adopt an ‘open architecture’ is likely to enhance its appeal to China.     

检察监督与审判独立

审判独立是一项为现代法治国家普遍承认和确立的基本法律准则 ,排斥外在的监督和干预是其独立的内在要求。而现行检察监督制度在一定程度上损害了法院对审判权的独立行使。本文在比较和评析国外民事检察制度的基础上 ,指出审判独立的内在价值和要求正是排斥外在的监督和干预 ,同时 ,针对我国现行检察制度困境提出了具体的改造措施。     

How to understand China's approach to central bank digital currency?

China's central bank digital currency (CBDC), digital yuan or e-CNY, is likely to profoundly affect the international financial system. China's CBDC is fast evolving. Understanding the influencing factors of China's CBDC will likely be crucial to explore its future direction. Major influencing factors include (i) China's perception and conception of regulation and technology, (ii) complementarity between China's preferences and CBDC development, (iii) domestic and international legitimacy, and (iv) institutional development. This paper argues that these influencing factors contribute to China's likely approach of selectively reshaping the international financial system. Given the potential wide-ranging implications of the introduction of CBDC globally, China's approach may be significant in the next evolution of money.     

Adapting to the foreign technological challenge

United States technology is increasingly viewed as providing the backbone and where-withal to arrest the nation's economic slide and to restore the accustomed U.S. leadership position in international trade. This view stems from demonstrated U.S. preeminence in technology, the importance of technology in economic growth, and the ascendance of technology in foreign affairs and international trade today. But, undue preoccupation with the domestic technology base represents at best a suboptimum strategy in the face of a continuing decline in the national investment in R&D. In view of the incipient shifting of the world technological balance overseas, comparable attention needs to be focused on foreign technological developments, and their potential for import and adaptation to help fuel technological innovation at home. A more balanced mix of foreign and domestic technological ingredients in the U.S. socioeconomic cauldron promises to be more attuned to the reality of scarce domestic resources and the changing world environment.     

Soviet Piracy of U.S High-Tech Secrets

The explosive expansion of high technology internationally threatens the United States with a nettlesome problem now and in the decade to come. The Soviet Union has increased its espionage to steal high-tech secrets in order to increase its military strength while bolstering a shaky economy. A major national concern is how to protect national security without damaging research and development of new technologies. This paper examines the motivations of the Soviets, current U.S. efforts to combat this threat, and some measures to deal with illegal technology transfers.     

The Chinese mafia: private protection in a socialist market economy

Gambetta's theoretical framework focuses on two important aspects directly relating to the birth and development of mafias, namely a demand for private protection and a supply of the same. In the Post-Mao era, China started its transition from a centrally controlled economy to a market-directed economy by adopting reform and opening-up policies. The widespread creation of property rights has exponentially enlarged the demand for protection. However, property rights are ambiguously defined in the Chinese legal system, and the state is unable and unwilling to provide efficient and sufficient law enforcement mechanisms for needy people because of the rampant corruption of government officials and the weak judicial system. In this case, the mafia that is interested in the private provision of protection developed into an alternative enforcement mechanism for ‘securing’ property rights in China's economic transition. The most important service offered by the mafia in China is not only to assist business enterprises in monopolising the market, but also to assist local government in China's economic reform.     

Manpower impacts of changes in federal budget priorities

This paper presents the results obtained from computer simulations conducted to determine the sentitivity of occupational employment demands to shifting patterns of U.S. Federal expenditures. The general model utilized is described and the effects of four hypothesized shifts in national priorities upon U. S. manpower requirements in the early 1960's are estimated. Selected occupations are classified and ranked according to their sensitivity to changing patterns of resource allocation between military and civilian activities. From these findings implications for economic and manpower forecasting are derived and discussed.     

EXAMINING THE RELATIONSHIP BETWEEN MILITARY SERVICE AND CRIMINAL BEHAVIOR DURING THE VIETNAM ERA: A RESEARCH NOTE*

Throughout U.S. history, the military has played a role in the lives of a large proportion of the U.S. population. However, little research has focused on this topic, particularly in criminology. This study seeks to determine whether military service changes an individual's criminal behavior and/or whether the military provides another setting for the continuation of prior behavior. To address these questions, this study uses Wolfgang's 1945 Philadelphia birth cohort and Shannon's 1949 Racine, Wisconsin birth cohort data sets. Statistical methods were used to account for potential differences in selection and the presence of unobserved heterogeneity. Results suggest that military service reduces later offending in general. However, there is no significant effect of service on later violent behavior.     

The law and economics of organ procurement

This paper presents an economic analysis of the organ procurement system in the U.S. and examines proposals to alleviate the shortage of transplantable organs. The paper's principal conclusions are: (1) Although non-market solutions deserve the highest priority, demand increases fueled by improvements in transplant technology will probably make some market-based solution necessary in the future. (2) Quality deterioration and coercion will not necessarily be worrisome problems under a market-based procurement system.     

A Note on Taiwan's National Security Council and its Role in Antiterrorism

While the U.S. struggled to quickly mobilize a coordinated national homeland security office after the September 11 attacks, the National Security Council (NSC) has been responsible for monitoring security in the Republic of China since the Nationalists moved to Taiwan in 1949. Although its primary mission has been to prevent Taiwan from being invaded by Mainland China, recent world events have awakened us to a need for security, a need that seemed to have faded away after the end of the Cold War. Although not a strong probability, Taiwan is still a possible target of terrorism because of its close relationship with the U.S. Thus, it is worthwhile to explore the role of NSC in antiterrorist efforts. The NSC plays a vital role in coordinating executive agencies in antiterrorism efforts. The NSC's antiterrorist measures cover the whole spectrum of the executive branch ranging from law enforcement to non‐law enforcement efforts. The tradition of collaboration among the military, police, and private security in Taiwan may help the NSC to smoothly coordinate these three parties.     

Reflections on Mansfield, Technological Complexity, and the “Golden Age” of U.S. Corporate R&D

We focus on two themes, among those in Mansfield's work, particularly relevant to understanding the role of large corporations in the U.S. innovation system: (1) the development of science-based inventions into market-ready innovations, and (2) the imitation by one firm of another's technology. Both of these phenomena, we propose, depend critically on the extent of technological and organizational complexity characteristic of current products and potential innovations. Reporting on recent survey research of our own, we argue that the origins and potentially the future of U.S. leadership in technology-based economic growth lie in the complementarity of large corporations and entrepreneurial start-ups, each exploring and exploiting the market potential of different types of science-based innovations.     

企业社会责任的制度化

面对后金融危机时代以来中国经济可持续发展的强风险导向,现代产业网络核心的企业,已经越来越难以离开与利益相关方涉及经济、环境和社会等不同要素层面的交互和嵌入。更多地承担企业社会责任,不仅成为现代企业融入产业网络的标签,而且越来越借助制度的约束力,以保证切实践行。本研究在完成专门指向"制度性要素"的国内外文献和经验整理的基础上,归纳CSR责任制度化的世界理论共识和中国难题,藉此分析中国企业社会责任制度化的现状、问题和矛盾,在此基础上,以作为中国经济发展引擎的上海地区近200家产业和信息化领域企业为调研样本,甄别和发现责任制度化的关键议题和优先顺位,进而提出当下中国企业责任制度化的多元路径实现方案。     

Mapping the development of China's data protection law: Major actors,core values,and shifting power relations

This Article seeks to map the possible paths of the development of China's data protection law by examining the changing power relations among three major actors - the State, digital enterprises and the public in the context of China's booming data-driven economy. We argue that focusing on different core values, these three major actors are the key driving forces shaping China's data protection regime. Their dynamic and multidimensional power relations have been casting the development of China's data protection law with various uncertainties. When persuing different, yet not always conflicting values, these three major actors may both cooperate and compete with each other. Based on our careful analysis of the shifting power relations, we identify and assess three possible paths of the development of China's data protection law. We are much concerned that the proposed comprehensive data protection law might be a new attempt of the State to win legitimacy abroad, while actually trying to reinforce massive surveillance besides economic goals. We argue that a modest alternative may be that this law might show some genuine efforts for protecting data privacy, but still with poor enforcement. Last, we argue that the most desirable development would be that this law could provide basic but meaningful and effective protection for data privacy, and lay a good foundation for further development.     

What Obscures the Skill Content Embodied in China's Net Export?

China will exert a great impact on the world market after its accession to the World Trade Organization (WTO) with its labor-intensive exports, since China has more than 20% of the world's population.¹ Among which farmers make up 78.1% of the share.² This paper intends to measure the skill content embodied in China's net exports by using Maskus' (1994) methodology. The empirical results indicate that other factors tend to overshadow ranking of the skill content. It goes against the conventional wisdom that the Chinese farmers are not regarded as an abundant factor. The paradoxical result can be explained by mismatching of resources, identical homothetic preference and quality of input. Migration from rural areas to the coastal regions within the country will accelerate after China's entry to WTO. Moreover, upgrading of the skill content becomes imperative for China in its adjustment of export structure and resource allocation.     

‘Good soldiers are made,not born’⊥: the dangers of medicalizing ability in the military use of genetics

Advances in genetic and genomic science are of particular interest to the United States military. Responding to Maxwell J. Mehlman''s and Tracy Yeheng Li''s article Ethical, Legal, Social, and Policy Issues in the Use of Genomic Technology by the U.S. Military, this Commentary explores the social consequences of medicalizing what it means to be a good soldier. It begins by reviewing the well-documented consequences of medicalization in the contexts of the eugenics movement and modern genetic and genomic science. It then applies that analysis to the military use of genetics and genomics, focusing on the ways in which genetic or genomic accounts of military ability could entrench existing gender and racial disparities.     

EU–China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law?

EU has been the protagonist in promoting the internationalization of competition laws based on EU competition law norms. The development of China's Antimonopoly Law shows that EU has succeeded so far in establishing itself as the main reference point for China's competition regulation. The success can be mainly attributed to the EU‐China Competition Dialogue (Dialogue), a new initiative set up by EU and China in 2004. The paper reviews the internationalization of EU competition law and its characteristics. It then examines the Dialogue and how EU exported its competition law norms to one of the latest AML secondary legislations on Antimonopoly Pricing. It argues that the Dialogue's informal nature, EU's routinized technical assistance to Chinese competition authorities and its China‐oriented strategy in communication have been highly important in ensuring that the EU Competition Law becomes the main reference point for the AML. However, the paper argues that it is for the same reasons that EU faces weakness in controlling the reception of EU competition law norms by China. Based on this, the paper further illustrates that EU's understanding of competition law internationalization as reflected under the Dialogue has not undergone fundamental changes.     

Viewpoint Discrimination in the Military's Filmmaker Assistance Program and the First Amendment

The U.S. military provides assistance to filmmakers in the form of use of military sites, equipment and personnel, which can provide significant cost savings to filmmakers. The military, however, routinely denies this assistance to filmmakers whose productions portray the military in a way it considers objectionable, actions that constitute viewpoint discrimination by the government. While this may seem to be an unconstitutional violation of First Amendment rights, application of forum law and the unconstitutional conditions doctrine lead to the conclusion that the military's viewpoint discrimination is permissible and does not violate the First Amendment.     

网络服务商共同侵权制度之重塑

网络服务商共同侵权(间接侵权)制度是影响网络版权秩序最重要的法律规则。在这一领域,美国式的安全港规则居于统治地位。十几年来的网络版权实践表明,安全港规则不合理地降低了网络服务商的注意义务,损害了网络服务商预防第三方侵权的积极性,使得网络盗版泛滥。为了克服安全港规则的制度缺陷,美国和中国的法院被迫限制适用红旗标准或策略性地适用引诱侵权和替代责任规则,结果过度扭曲了网络间接侵权规则。为了改变这一现状,中国在修改著作权法时应当果断地放弃美国式的安全港规则,恢复侵权法一般规则的适用,强化网络服务商的注意义务。