论朝鲜“脱北者”的国际法地位及我国的对策

近年来,朝鲜"脱北者"问题逐渐成为地区乃至国际热点问题,中国在该问题上以遣返为主的政策也日益面临来自其他国家的压力。从1951年《关于难民地位的公约》的规定和相关国际实践来看,"脱北者"是否具有难民地位不能一概而论,而是要具体问题具体分析;我国的现有政策总体上无可非议,同时可以考虑按照国际条约,给予那些确因政治原因出逃的"脱北者"们国际法上的难民地位。此外,我国还有必要建立健全处理难民及相关问题的机制。     

Building Capacity

正Chinese companies in Africa are improving infrastructure and benefiting local communities Rashidat Aweda finds there are a lot of positives to her working relationship with employer Huawei.From the spacious office environment and friendly colleagues,to the consideration,respect and training the Chinese information and communications technology(ICT)solutions provider gives every employee,Aweda appreciates the growth opportunities Huawei has provided her.     

通知移除制度的重新定性及其体系效应

当前我国学界并存两种通说,即通知移除制度是网络服务提供者的免责条款,网络服务提供者的侵权责任采过错责任原则。但这两种通说在理论逻辑上是相互矛盾的。之所以出现两种矛盾的命题同时成为通说的现象,与我国在借鉴美国相关立法创设通知移除制度时,未注意到两国已有的制度环境,尤其是侵权归责原则上的截然不同密切相关。根据我国的法律体系,通知移除制度应重新定性为网络服务提供者的归责条款。该重新定性对我国已有的与通知移除制度相关的理论和实践带来了一系列体系性影响,我国相关立法规定、司法适用以及理论论证等需据此作出一以贯之的相应修正。     

Perceptions and use of videoconferencing in forensic mental health assessments: A survey of evaluators and legal personnel

ABSTRACT

The use of videoconferencing (VC) to conduct forensic mental health assessments (FMHA) is increasing. Yet, little is known about its acceptability among clinicians or legal professionals. In Study 1 (N?=?156), forensic evaluators were asked about their use of VC, reasons for its use, and opinions about the validity, usefulness, ethics, and legality of its use. An estimated one-third of evaluators have used VC in the past. Although evaluators overall expressed moderate concern over the ethics and legality of use, prior experience appeared to mitigate concerns. Younger practitioners were also more open to using VC. Reduced costs for courts was the most frequently endorsed benefit associated with VC, while restricted ability to administer psychological testing and potential technological problems were seen as the biggest disadvantages. In Study 2 (N?=?27), attorneys and judges were surveyed about frequency with which they encounter VC for FMHA and their perceptions about the validity of those assessments. Findings indicated legal personnel expressed rather negative views without having much first-hand experience of VC, including concerns about establishing rapport and technical difficulties. These studies have implications for whether VC will be adopted more frequently in FMHA.     

透视避风港原则合理注意义务的认定问题

后危机时代,视频网站行业的知识产权竞争及争议日益激烈,而与之相关的国际通用的“避风港”原则是否完全适用于国内新兴网络产业的疑问,涉及网络服务提供者、著作权人及最终消费者的利益平衡问题.土豆网胜诉案,凸显了我国侵权责任法合理注意义务的重要地位.然而,与美国Digital Millenium Copyright Act(DMCA)数字千年著作权法案中“通知与删除”程序对避风港原则合理注意义务规定相比,我国避风港原则对该义务的立法认定尚属模糊.时此,应当细化对网络服务合理行为的法律认定标准,包括对著作权人滥用通知共同侵权责任的认定、国家自主研发的网络过滤软件之推广、合理注意义务作为网络服务提供者过错标准的认定,以及网络著作权统一管理体系的创建等关键问题.     

论网络服务提供者的侵权责任

我国采取了以归责要件为核心的网络服务提供者侵权责任立法模式。此种立法没有充分注意到免责要件对网络服务提供者侵权责任的限制作用。它仅以信息网络传播权为主要保护客体,而对其他权利缺乏周全保护。为克服这种弊端,宜采取目的性解释的方法来理解网络服务提供者的免责条款与归责条件之间的关系;在判定网络服务提供者侵权责任之前,应优先考虑免责条款适用的可能性。建议制定以免责条款为核心的网络特别法。     

BOUNDARY OF CRIMINAL RESPONSIBILITY OF INTERNET SERVICE PROVIDERS — A LESSON FROM THE QVOD CASE

The Qvod case in 2016, in which the Chinese video-sharing site Qvod was convicted of the crime of disseminating pornographic materials for profits, provoked heated debates regarding the criminal responsibility of internet service providers (ISPs) in China. Using the Qvod case as an example, this paper first discusses the definition and the legal obligations of ISPs, and argues that we should decide the criminal responsibility of ISPs according to their functions and the content of their services. This paper further analyzes four major issues associated with the criminal responsibility of ISPs, including accomplice responsibility, accessory with neutral conduct, perpetrator by action or omission and ideal concurrence (Idealkonkurrenz).     

European national news

This article tracks developments at the national level in key European countries in the area of IT and communications and provides a concise alerting service of important national developments. It is co-ordinated by Herbert Smith Freehills LLP and contributed to by firms across Europe. This column provides a concise alerting service of important national developments in key European countries. Part of its purpose is to complement the Journal's feature articles and briefing notes by keeping readers abreast of what is currently happening “on the ground” at a national level in implementing EU level legislation and international conventions and treaties. Where an item of European National News is of particular significance, CLSR may also cover it in more detail in the current or a subsequent edition.     

What Makes a Good Alibi? A Proposed Taxonomy

A taxonomy of alibis is proposed involving two forms of supporting proof: physical evidence and person evidence. Levels of physical evidence and person evidence were combined to create 12 cells in the taxonomy. Participants (n = 252), who were asked to assume the role of detectives, evaluated alibis representing these 12 cells. The believability of the alibis generally followed the taxonomy's predicted pattern, but physical evidence, when present, tended to overwhelm the person evidence more than had been expected. In addition, alibi evaluators seemed to not consider the possibility that a stranger who corroborated an alibi might be mistaken about the identity of the person. Trait inferences regarding the alibi providers tended to follow the believability data, even when the traits themselves were not relevant to believability of the alibi. We call for the development of a literature on the psychology of alibis, recommend the taxonomy as a framework, and suggest several avenues of inquiry.     

European national news

The regular article tracking developments at the national level in key European countries in the area of IT and communications – co-ordinated by Herbert Smith LLP and contributed to by firms across Europe. This column provides a concise alerting service of important national developments in key European countries. Part of its purpose is to compliment the Journal's feature articles and Briefing Notes by keeping readers abreast of what is currently happening “on the ground” at a national level in implementing EU level legislation and international conventions and treaties. Where an item of European National News is of particular significance, CLSR may also cover it in more detail in the current or a subsequent edition.