法律冲安时的适用标准——以刘家海诉交警部门案为例

法律毕竞是人为制定的规则,法律之间的冲突从某种意义上是不可避免的.司法,作为规则之治的终结者,自然需要对冲突的法律进行选择适用.尽管立法法已经出台,但现实的司法判决表明,法律冲突时的适用标准依然存在问题.刘家海诉交警部门案就是一例.通过将该案的争论焦点渐次展开可以发现,立法法中貌似明确的适用标准起码可以进行三个方面的补充:一是原则考量的引入,二是"立法权"替代"立法机关"进行解释,三是社会效果考量的必要.     

Copiepresse SCRL & alii v. Google Inc. – In its decision of 5 May 2011, the Brussels Court of Appeal confirms the prohibitory injunction order banning Google News and Google’s “in cache” function

In 2003, Google made available in Belgium its online free service “Google News”, which consisted in offering Internet users a computer-generated press review. In his orders of 5 September 2006 (previously commented in [2007] 23 CLSR 82–85) and of 13 February 2007 (previously commented in [2007] 23 CLSR 290–293) the President of the High Court of Brussels found that, by offering this service, Google infringed the copyrights of Belgian press editors and authors. On 5 May 2011, the Brussels Court of Appeal upheld to a very large extent the first instance decision. The Court confirmed that Google’s “cache” function and its “Google News” service were infringing the claimants’ copyrights and that Google could not rely on any copyright limitation (such as the exceptions for quotation or for report on news events), legislation or fundamental right.     

林诉亚利桑那州案对美国死刑案件量刑制度的深远影响

林诉亚利桑那州案是美国死刑量刑制度中一个具有里程碑意义的重要判例,自该案之后,美国联邦最高法è院确立了量刑中加重情节必须由陪审团而不是法官加以认定.该案对法官独立量刑州以及混合程序州均产生了重大影响,立法机构也作出了积极的回应,其深远的影响将极大地改变美国死刑制度的未来发展.     

结合Sheppard v.Maxwe11案谈我国媒体与司法和谐关系的构建

本文通过对Sheppard v．Maxwell案具体案情利审理的分析，介绍了美国解决媒体与司法冲突的理念和对策，并从立法机关、新闻媒体、司法机关三方面对我国媒体与司法和谐关系的构建提出了具体的建议。     

The Wasted Costs Jurisdiction

The wasted costs jurisdiction is flawed for six reasons, based on an analysis of all reported cases in the last nine years and five years of statistics provided by the Bar Mutual Insurance Fund Limited, and despite the guidance laid down by the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205. First, it is very costly proportionate to the amount recovered. Secondly, judges can initiate a wasted costs enquiry, which is unfair and even more disproportionately costly. Thirdly, it is procedurally complex. Fourthly, it is unpredictable whether the client will waive privilege, and what the consequences will be whether or not privilege is waived. Fifthly, it is not possible for solicitors and barristers to make contribution claims against each other. Sixthly, it is mostly used against lawyers representing legally aided litigants from whom costs cannot be recovered.     

Vexatious Claims: Challenging the Case for Employment Tribunal Fees

Since July 2013, recourse to Employment Tribunals in the United Kingdom has attracted fees of up to £1,200 for single claimants. The impact of this reform has been dramatic: within a year, claims dropped by nearly 80 per cent. This paper suggests that this fee regime is in clear violation of domestic and international norms, including Article 6(1) ECHR and the EU principle of effective judicial protection. Drawing on rational choice theory and empirical evidence, we argue that the resulting payoff structures, negative for the majority of successful claimants, strike at the very essence of these rights. The measures are, furthermore, disproportionate in light of the Government's stated policy aims: fees have failed to transfer cost away from taxpayers, have failed to encourage early dispute resolution, and have failed to deter vexatious litigants. The only vexatious claims, we find, appear to be those which motivated the reforms in the first place.     

Ex Turpi Causa: Reformation not Revolution

Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed the ‘range of factors’ approach, whereas three condemned it. This paper defends the majority's approach against the minority's criticisms but argues that refinements should be made to it in order to address the uncertainty that may arise from its application.     

The “process” of patenting: Why should we care about a potential U.S. Supreme Court decision in Bilski v. Doll?

In Bilski v. Doll, the U.S. Supreme Court is called to define one of the categories of patent-eligible subject matter, “process” patents. In 2008, the Court of Appeals for the Federal Circuit held that the category has a narrow meaning, and that to be eligible for a process patent under 35 U.S.C. § 101, the invention must involve a machine or apparatus or involve a transformation to a different state or thing, ultimately rejecting the patent application as unpatentable subject matter. The patent applicants have asked the U.S. Supreme Court to determine two issues: first, the meaning of “process” in 35 U.S.C. § 101 and whether the lower court properly relied on a “machine-or-transformation” test, and second, the test's potential conflict with 35 U.S.C. § 273, which provides protection for “method[s] of doing or conducting business.” The Court's decision could change the way that research and business are done, and patent protection for such investments. Parts 1 and 2 of this article address Bilski directly and what is and is not in dispute. Part 3 addresses the “machine-or-transformation” test, while Parts 4 and 5 address reasons not to adopt such a test.