论公共财产权的法律性质——对《宪法》第12条第1款的一种解释

现行《宪法》第12条第1款规定:社会主义的公共财产神圣不可侵犯。公共财产权这一权利有别于一般的财产权和私人财产权,其主体是国家和集体,客体包括一般客体和特殊客体,它的实现需要从积极和消极两个方面推进,对它的保护应从源头抓起,同时需要在整个过程中加以治理。只有真正实现公共财产权,社会主义的公共财产神圣不可侵犯才不至于只是一个宣示。     

EXAMINING THE “CRIMINAL CAREERS” OF PROSTITUTES WITHIN THE NEXUS OF DRUG USE,DRUG SELLING,AND OTHER ILLICIT ACTIVITIES*

This paper examines the co‐occurrence of prostitution, drug use, drug selling, and involvement in non‐drug crimes among women who have used serious drugs (e.g., crack, heroin). Existing perspectives on the drug use‐prostitution nexus are re‐examined using three dimensions of the criminal career paradigm: prevalence, lambda, and age of onset. Results show that approximately one‐half of the women who reported regular drug use never prostituted, and that, except for use of crack cocaine, use of other drugs was unrelated to the prevalence, frequency, or age of onset into prostitution. The results also show that committing property crime was associated with an increased prevalence and early onset into prostitution, while selling drugs coincided with a decreased prevalence and delayed onset into prostitution.     

Liberal coercion? Prostitution,human trafficking and policy

Liberal prostitution policy aims at improving labor conditions for prostitutes and protecting victims of forced prostitution. Given its policy mandates, legalized prostitution should be linked to better protection policies for trafficking victims and stronger anti-trafficking measures. In this paper, I investigate empirically whether or not legalized prostitution improves protection policies for victims, as it is presumed. The results of my analysis—using data from 149 countries for the period of 2001–2011—suggest that a liberal prostitution policy does not lead to better protection and, in some cases, legalized prostitution can be detrimental to protecting victims of human trafficking.     

商标法中在先权利的知识产权法解释

在先权利的解释应当坚持知识产权法定主义和整体性知识产权法观念;在先权利是指法律效力低于知识产权特别法规定的权利的某些权益,或者指那些知识产权特别法、反不正当竞争法、民法虽然有规定,但是按照这些法律,当和商标权发生冲突时难以进行处理的权益;能够成为商标注册阻却和注册商标撤销事由的在先权利应当在商标核准注册之日之前在全国知名,而作为注册商标专用权限制事由的在先权利,只要求在一定地域范围内知名即可;注册商标权人有权要求在先使用人附加区别性标记,在先使用人有权扩大自己的营业范围,但是不得有不正当竞争行为。     

Institutional affiliation of authors in selected criminal justice journals

Publication in professional journals provides both individual and institutional rewards, contributing to the prestige of authors and of colleges and universities with which they are affiliated. Faculty publications are often regarded as important factors in the creation and maintenance of institutional prestige. A survey of six criminal justice journals revealed that the majority of institutions with recognized criminal justice doctoral programs were represented by faculty publications. On the other hand, the list of academic institutions with which published authors were affiliated included many institutions without criminal justice doctoral programs. The data also revealed that slightly over one-quarter of the published material in the selected list of journals had been authored by individuals not affiliated with academic institutions.     

Nanoscience and technology publications and patents: a review of social science studies and search strategies

We undertake a comprehensive review of more than 120 social science studies on nanotechnology, 90% of which are based on the analyses of the nanotechnology publications and patents. We discussed four intellectual debates formed by these studies, namely whether nanotechnology is an interdisciplinary field, whether nanoscience and nanotechnology are closely interlinked, whether nanotechnology development is path dependent and who is winning the global nanorace. We also conduct a comparative analysis of bibliometric search strategies used in the literature to harvest the publications and patents, including lexical queries, evolutionary lexical queries, citation analysis, and the use of core journal sets to identify nanotechnology articles. Because most of the compared strategies, except the one using 10 core journals in the field, share a core set of keywords and thus harvest a common batch of publications, they produce very similar ranking tables of the top subject areas and journals and the most prolific countries and institutions. Moreover, the core journal strategy does not provide a robust delineation of an emerging field such as nanotechnology due to the fact that nanotechnology related articles are published in a wide range of journals. Also, the different criteria for selecting the core journals will affect the analytical results dramatically.     

Moral Reasons for an Intercultural Criminal Law. A Philosophical Attempt

The internationalization of our societal relations has even had an impact on criminal law. While criminal law previously fell almost exclusively within the scope of the responsibilities of individual states, internationalization has affected the practice of criminal law for a long time now. Neither terrorism nor gun-running nor drug trade nor child prostitution observe national borders. In such a new frame of cross-cultural legal problems, the paper shows that—insofar as criminal offences can be justified with universal and human rights arguments, as they usually can—moral reasons for an intercultural criminal law can be given.     

Effects of prostitution: An urban population responds

This article examines community perceptions about the legalization of prostitution in a large southern community. The authors utilized a random digit dialing technique to develop a representative sample consisting of 850 respondents. In addition, the authors interviewed prostitutes to determine their perceptions about how they helped individuals and society. Themes were developed from the personal accounts of the prostitutes and presented to the public to assess their feelings regarding whether or not prostitution is beneficial in certain instances. One of the major findings of the study was that 32% of the community members interviewed believed that prostitution should be legalized. This finding led the authors to discuss policy implications in the last section of the article.     

Client-Inflicted Violence and Coping Strategies Among Sex Workers in China

To date, very little research has focused on violence inflicted by clients on women working in the sex industry in China. This article examines the nature and extent of client-inflicted violence against sex workers in China and analyzes the coping strategies employed by the victims. It argues that violence is an integral part of sex work. Indoor sex workers are subject to more violence and harassment than their outdoor counterparts, mainly on account of the nature of the sex services provided. The article contends that the criminalization of prostitution places women in a vulnerable position and advocates decriminalization of prostitution to promote health and human rights for disadvantaged women in the sex industry.     

自由与和谐:不动产财产权的私法限制

私法的重要目的与任务是保护私人财产所有权,其中最为重要的是保护不动产财产权。在现代社会,财产权负有社会义务,其行使自由应当受到一定的限制已成为人们共识。为此,各国私法在对财产权行使自由保护的同时,普遍加强了对财产权尤其是不动产财产权行使的限制,并不断提出更高层次的限制要求。在此过程中,应遵循禁止权利滥用、公序良俗与诚实信用、情势限制与容忍义务等基本原则。只有有限的自由与适度的限制,才能达到社会各利益主体间的平衡,并最终实现社会的公平与和谐。     

民法中的财产权竞合规范以优先规范为中心

作为多重财产权并存的一种，民法中的财产权竞合以债权竞合、物权竞合和债权物权竞合为基本形态，其基本规范要素是管制强弱和时间先后，其规范不同于其他财产权并存规范，但又有相当的关联性。作为核心规范的优先规范以公示为基础，并引申出法定顺位规则，而权利人的意思自治能改变优先规范，由此产生顺位意定规则。     

从英国经验看我国卖淫刑事政策的变革

上世纪末以来，英国在考察欧洲其他国家相关制度的基础上，对本国的卖淫法律制度进行全面审查，并开始变革卖淫刑事政策。在我国，卖淫的刑事政策在近十余年里遭到社会学者和犯罪学者的批评。从权利保护的价值观以及刑事政策的有效性等角度出发，可以借鉴英国变革的经验，对我国的卖淫刑事政策进行反省和变革。     

Consent or Property? Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey

This article first considers the tenuous base on which the law of property in the body is founded, and then discusses the practical results of this in the light of the recent furore surrounding events at Bristol and Alder Hey. The authors suggest that neither the consent-based model followed by the official inquiries into these events nor a possible policy based on a full-blown property model adequately cover the private rights of an individual's next of kin or the right of the public to an efficient and reliable pathological service within the NHS. Rather, they propose that a combined model in which a 'cascade of possession' for the recognition of various property interests is initiated by assent on the part of the next of kin and terminates in full possession of the body vested in the executor for the purposes of its disposal. The authors recommend further that any reform of the law should apply property rights to body parts taken from both the living and the dead.     

物权行为与善意取得保障交易安全机能之分析与比较

物权行为和善意取得以各自不同的机制,保护交易关系中的第三人利益,从而维护交易安全。物权行为以其无因性原则,切断前手交易的瑕疵,保护第三人利益,具有保障无偿取得者正当利益和维护债权人权益的善意取得所不具有的机能。但在无权处分时,物权行为无法发挥作用,只能借助于善意取得制度来实现对第三人利益的保护。物权行为和善意取得在保障交易安全方面的机能各有所长,两者均不可偏废,都应在我国的物权立法中体现。     

Who owns our data?

The layman's answer to the question posted in the title to this paper lies in the question itself. The common understanding of people when they talk about information about themselves is that it is indeed “theirs”. Until relatively recently, the law has been content to remain agnostic on the subject. The Common Law in general and English Courts in particular have traditionally avoided philosophical debates about the nature of things, preferring to develop concepts and principles from the results of cases decided on specific facts and circumstances. This approach has been acceptable while we have been winding our way gently up the foothills of the Information Age, but now that we see the towering peak of Big Data standing before us, covered by the ubiquitous Cloud, it is necessary to make a critical examination of some of the basic assumptions which we have hitherto carried with us about the way in which the law should treat rights over personal information. This paper will argue that the correct approach which the law should adopt is a proprietary one. That is to say that the protection of the economic value inherent in personal information should be grounded in property rights acknowledged by the law.     

试论知识产权限制的法理基础

利益平衡是构建知识产权限制制度的基本法律观。各类主体的相互利益关系,在知识产权法律中的权利配置方面,表现为本权与他权、私权与公益的关系;知识产权虽为一种独占性权利,但往往受到一定的限制,包括公共领域保留、权利行使限制、禁止权利滥用等;知识产权立法应秉持二元价值目标,即保护创造者合法权益和促进知识广泛传播。     

Determining health care rights from behind a veil of ignorance

Should our society establish positive rights to health care that each citizen could claim, as many health policy analysts believe? Or should it provide only background rules of contract and property law and leave the provision of health care to the free market, as Richard Epstein advocates in Mortal Peril? In this article, Professor Korobkin argues that this question should be addressed from the Rawlsian "veil of ignorance" perspective. That is, the question should be answered by asking what kind of society would individuals agree to form if they had no knowledge of their individual skills or endowments; if they did not know whether they were rich or poor, healthy or sick, weak or strong. Professor Korobkin contends that individuals behind such a veil of ignorance would balance their inherent risk aversion (which favors a safety net of "rights") against the inefficient incentives created by rights regimes that would reduce net social wealth (which favors a free market). Whether they would choose to establish rights to health care or not is ultimately an empirical question that turns on how inefficient any particular right would be. The question thus requires a case-by-case analysis of proposed rights. The article then considers the policy issues of (1) community rating of private health insurance and (2) the mandated provision of emergency medical care. It concludes that in these cases the inefficient incentives created by establishing rights are probably smaller and/or controllable enough to lead individuals behind the veil of ignorance to favor a regime of positive rights.     

论市场主体的基本经济权利及其行政法安排

在市场经济条件下 ,市场交换的本质是产权的自由让渡 ,因此 ,财产权和经济自由权是个人和组织作为市场主体参与市场活动必须具备的基本权利 ,这些基本权利不仅需要私法的规定和保护 ,更需要行政法的确认和安排 ,以使个人和组织作为市场主体在与作为行政主体的行政机关打交道时能够得到制度上的保障。另一方面 ,在现代社会 ,财产权和经济自由权又不是绝对的权利 ,为了社会的公共利益它们又常常受到法律上的限制 ,因此 ,如何在“个人的权利和自由与政府的权力这两个逆向的观念之间创制一种可行的平衡”也是行政法上必需解决的一个课题     

网络中的知识产权保护

本文以分析网络著作权保护的司法态势为切入口 ,从研究中国知识产权保护的现状出发 ,在论证“邻接权吞并著作权”倾向的基点上 ,探讨了我国现行著作权法对网络知识产权保护的局限 ,最后通过对美国及我国香港知识产权保护的比较研究 ,提出我国网络知识产权保护的意见及建议。     

物权法定原则批判——兼评《中华人民共和国物权法》第五条

物权法定原则下的物权体系是封闭性的,不能及时吸纳经济生活实践中涌现出来的新型物权。物权法定原则限制了民事主体的财产自由,违背了私法自治原则,而且没有充分、正当的立法理由。我国《物权法》第五条明确规定了物权法定原则,这是一个不明智的立法选择,将来应当予以废弃,代之以实行物权自由创设主义,以公示性作为物权与债权的区分标准,使物权体系由封闭走向开放。