中国经济体制转型与《商标法》的第三次修改

我国《商标法》的第三次修改工作已全面展开。这次修改以中国经济从高度集中的计划经济体制向社会主义市场经济体制的转型为时代大背景,因此,我们应站在战略全局的高度,大刀阔斧、锐意改革。具体而言,应当涤除计划经济的理念和制度,删除《商标法》中"加强商标管理"的立法宗旨,将《商标法》调整对象从"注册商标法律关系"回归到"商标法律关系",重构《商标法》中的商标利益平衡机制,从而推动我国《商标法》的现代化进程。     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

Battered Women and the Criminal Justice System: The Service Providers' Perspective

This article reports on a study of the service providers' perspective on what battered women face when entering the criminal justice system. Victim non-co-operation with the system can manifest itself in various ways and at several points in the process. The article begins with a review of the available literature on the criminal justice system's responses to women battering. Then the experiences and perceptions of service providers in Ohio concerning these responses are described, and, consequently, the findings according to factors which may affect service providers responses are analyzed. The article concludes with an assessment of the policy implications of the system's response to women battering.     

Questioning Fundamentals: Leyland Daf and the 'Ownership' of Charged Property

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Retraction . Modern Law Review 67: 6, 1046‐1046 .
Online publication date: 1‐Oct‐2004. Although the House of Lords decision in Leyland Daf was primarily concerned with the order for distribution of assets in a winding‐up, it has several other far‐reaching ramifications and repercussions. The reasoning of their Lordships in the case alters our understanding of the very nature and operation of a charge over a company's assets. This reasoning strikes at the heart of the law of security interests, bringing into question the fundamental distinction between a charge and a mortgage. Furthermore the decision has given a whole new complexion to the concept of a floating charge which will have tremendous consequences for its application in commercial practice. This paper analyses the decision firstly on the basis of its legal principle and then on the basis of its policy considerations and concludes that its reasoning is neither sound nor justifiable on either ground.     

Fragmenting Fatherhood: The Regulation of Reproductive Technologies

Reproductive technologies offer the potential to break down parenthood into a number of constituent parts. These disruptive possibilities mean that the regulation of reproductive technologies holds important potential for study, providing a significant resource that has been little analysed with regard to fatherhood. This study attempts to remedy that lacuna through consideration of a range of recent developments in this area of English law. It reaches two general conclusions. First, while the law regulating reproductive technologies attributes great importance to fatherhood, this is rooted primarily (though not exclusively) in concerns for the symbolic importance of fathers, rather than in more practical considerations such as ensuring financial provision or a second hands-on carer for a child. Secondly, the Human Fertilisation and Embryology Act (1990) contains a clear attempt to protect and entrench the role of the father as completing the nuclear family. However, recent developments suggest that this legal preference for the nuclear family is subject to clear emerging cracks.     

股东大会决议瑕疵的救济

股东大会决议瑕疵存在于程序和内容两个方面,瑕疵股东大会决议的效力分为决议不存在、决议可撤销和决议无效三种情形。瑕疵决议可以寻求全体股东的一致同意、决议的撤回和追认等多种方式得到补救。但对瑕疵决议的效力,只能以诉的方式主张;对瑕疵决议的裁判方式和效力有特殊性,应防止撤销之诉的滥用。我国《公司法》第111条缺失瑕疵股东大会决议的效力评价体系,应予改革和完善。     

Restrictions on cryptography in India – A case studyof encryption and privacy

The developments of technology in communications industry have radically altered the ways in which we communicate and exchange information. Along with the speed, efficiency, and cost-saving benefits of the digital revolution come new challenges to the security and privacy of communications and information traversing the global communications infrastructure. As is with any technology the misuse of technology is noticed similarly the encryption technology. Encryption and other advanced technologies may be used, with direct impact on law enforcement and therefore some restrictions are necessary in the interests of national security. The problem, however, is ensuring that the restriction is legitimate and solely for in the interests of national security, the state not being allowed to interfere and keep a track on individuals' activities and private lives without sufficient cause. The individual needs encryption to protect their personal privacy and confidential data such as medical information, personal financial data, and electronic mail. In a networked environment, such information is increasingly at risk of being stolen or misused. Therefore, encryption is critical to building a secure and trusted global information infrastructure. Digital computers have changed the landscape considerably and the entire issue, at its simplest level, boils down to a form of balancing of interests. The specific legal and rights-related problems arising from the issue of cryptography and privacy in the Indian context are examined in this paper.     

Why privacy is at risk

Dr Chris Pounder has been professionally involved in delivering data protection services since the time of the Lindop Report in 1978. Here he argues for an express link between the data protection and human rights regimes. Amberhawk is a new company founded by Chris in 2008 with Sue Cullen as the vehicle for the continuation of the information law training business previously operated by Pinsent Masons LLP.     

论程序行政行为的可诉性——以规划环境影响评价公众参与为视角

程序行政行为,原则上不能单独对其提起行政诉讼。何种程序行政行为例外可诉,需要结合个案,对维护行政效能、保障公民程序权利和实体权益等因素综合考量才能确定。规划环境影响评价过程中,公众能否参与以及参与的形式和内容都取决于相关行政主体的程序行政行为。对于此种程序行政行为,在法政策的层面,有许可对其单独提起行政诉讼的必要性;在法解释的层面,对其提起行政诉讼不存在受案范围和原告资格方面的制度障碍。     

宽严相济政策对犯罪控制效率的兼顾

宽严相济的刑事政策以促进社会和谐为基本价值目标,但这一政策对犯罪控制的效率可能产生一定的消极影响。犯罪控制效率同样决定着社会和谐的程度,因此,实施宽严相济刑事政策必须兼顾犯罪控制的效率。其主要对策是,借鉴《联合国反腐败公约》制定的反腐败策略,在立法和司法两个层面鼓励涉嫌犯罪者与刑事执法机关合作,并以现代侦查手段武装侦查机关,提高侦查、公诉机关揭露和证实犯罪的能力。