危险驾驶行为入罪的三个问题

危险驾驶行为的社会危害有目共睹,是当前刑事立法领域的焦点。在我国行政法与刑法处罚二元体系并存情况下,危险驾驶行为是否应当入罪,危险驾驶行为如果入罪应当采取何种罪名以及犯罪构成模式,危险驾驶的刑罚如何规定,这三个问题在刑事立法中应当着力思考。     

Post-termination use of licensed intellectual property by licensees

Legal and practical context: The ongoing dispute between Nokia and Qualcomm exemplifies thecomplex issues that arise when the licensor–licensee relationshipbreaks down. It illustrates that any means by which a licenseecan secure rights to use licensed IP after termination of alicence agreement can be of great commercial importance, notto mention significant economic value. If a licensee can continueto use licensed IP notwithstanding that its agreement has beenterminated, a licensor's ability to control and derive maximumeconomic benefit from its IP may be fundamentally compromised. Key points: The means available to licensees to secure such rights varydepending on the kind of IP right licensed, but there are severalcommon themes, which draw on a diverse range of legal rulesand concepts, including specific IP concepts and laws (includingthe rules relating to assignment and licensing, the exhaustionof rights, revocation and invalidation, and defences to infringementclaims), contract law and competition law. This article discussespractical implications to be considered when drafting IP licenceagreements. Conclusions: From a licensee's perspective, the termination of its licenceagreement is not necessarily the end of the road. Licenseesshould be aware of these post-termination rights when expectingto face difficult renegotiations with a licensor. From bothparties' perspectives, but particularly that of licensor, thisarticle should demonstrate the importance of drafting to avoidany uncertainty that may arise on the termination of a licenceagreement.     

Driving under the influence of alcohol and/or drugs in the Netherlands 1995–1998 in view of the German and Belgian legislation

This study presents the test results of blood and urine samples of impaired drivers in the Netherlands between January 1995 and December 1998. In this period, the blood alcohol concentrations of 11,458 samples have been determined and 1665 blood or urine samples have been analysed for drugs. The median alcohol concentration was between 1.7 and 1.8 mg/ml blood. In 80% of the 1665 analysed samples drugs were detected. At least 42% (702/1665) of the impaired drivers were poly-drug users, with cocaine present in the most frequent combinations. In the Netherlands, the procedure to prove driving under the influence is complex. This procedure can be made more efficient and more effective by embedding the analytical test results, needed to prosecute an impaired driver, in the law. In Belgium and Germany, such laws already are in force. If we would apply the qualifications of the new Belgian law on our analytical data, 67% of the impaired drivers included in this comparison could have been prosecuted without discussion in court.     

The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues

This article details the history and development of the National Highway and Safety Administration's Standardized Field Sobriety Tests. They are reviewed in terms of relevant scientific, psychometric, and legal issues. It is concluded that the research that supports their use is limited, important confounding variables have not been thoroughly studied, reliability is mediocre, and that their developers and prosecution-oriented publications have oversold the tests. Further, case law since their development has severed the tests from their validation data, so that they are not admissible on the criterion for which they were validated (blood alcohol concentration), and admissible for a criterion for which they were not (mental, physical, or driving impairment). Directions for further research are presented.     

Use of drugs of abuse in less than 30-year-old drivers killed in a road crash in France: A spectacular increase for cannabis, cocaine and amphetamines

A collaborative study was conducted in France in order to determine the prevalence of cannabinoids, opiates, cocaine metabolites and amphetamines in blood samples from drivers killed in road accidents in 2003 and 2004 and to compare these values with those of a previous study performed during the period 2000–2001 involving 900 drivers. Blood samples were provided from 2003 under 30-year-old drivers, killed in a traffic accident. Drugs of abuse were determined by gas chromatography–mass spectrometry using the same analytical procedures in all the 12 laboratories.The most frequently observed compounds were by far cannabinoids, that tested positive in 39.6% of the total number of samples. Δ⁹ tetrahydrocannabinol (THC), the most active of the principle constituents in marijuana (cannabis sativa), was detected in the blood of 28.9% drivers and was the single drug of abuse in 80.2% of the positive cases. It was associated with amphetamines in 7.4% and with opiates and cocaine in 1.9 and 4.8%, respectively. Amphetamines were present in 3.1% of the total number of samples, cocaine metabolites in 3.0% and opiates in 3.5%.When comparing these results with those of a previous study performed 3 years before, a significant increase is observed for THC (28.9% versus 16.9%), cocaine metabolites (3.0% versus 0.2%) and amphetamines (3.1% versus 1.4%).This study demonstrates the critical necessity of implementing in France as soon as possible systematical roadside testing for drugs of abuse.     

Can wine tasting be used as a defence to a charge of excess alcohol?

Wine-tasting has been used as a defence in the UK to charges of driving with excess alcohol on the breath. There is little scientific data to support this explanation. The authors carried out an experimental wine-tasting using twelve volunteer subjects. Breath alcohol samples were taken at the start of the experiment and fifteen minutes after the end. All subjects after wine-tasting had breath alcohol levels below the instrumental limit of detection. The authors conclude that the wine-tasting defence is not credible.     

吸毒驾驶相关立法现状及完善建议

吸毒后驾驶行为（简称毒驾行为）是指非医疗目的服用国家管制的精神药品和麻醉药品后（查获时毒品检测呈阳性）驾驶机动车的行为^[1]。当前,我国因毒驾导致的各种问题正逐渐显现并呈愈演愈烈之势,社会焦虑感日益增强,严重威胁着道路交通安全和社会和谐稳定。我国关于毒驾的法律法规尚不完善,“毒驾入刑”仍在论证中,具体的处理程序、法律责任等尚不明确。本文就我国吸毒后驾驶相关的立法现状给予总结,并借鉴我国酒驾相关立法的规定,科学分析我国毒驾相关立法完善的难点,并提出有针对性的立法建议。     

论行政许可听证制度的法理基础和宪法依据

行政许可听证制度是一项保障行政许可相对人发表意见、了解行政机关作出行政许可决定的依据,保护当事人民主权利的法律制度。探讨行政听证制度的宪法依据和法理基础不仅是行政许可听证制度的立法要求,而且也是完善和发展我国听证制度的现实需要。自然公正原则、正当法律程序和依法治国理论是西方国家听证制度的法理基础。美国听证制度的依据源于宪法规定的正当法律程序。确立我国行政许可听证制度的宪法依据,进一步完善我国听证制度就必须修正《宪法》第五十一条,增加“中华人民共和国公民所享有的宪法和法律规定的权利,一切国家机关未经合法程序不得剥夺。”一款,并制订统一的《行政程序法》。     

“孟中印缅”地区合作机制：推动因素与制约因素

"孟中印缅论坛"已走过五年的探索历程,现已开始步入实质性阶段.随着相关国家经贸合作水平的提高和对区域机制建设的共识日益增强,该机制已逐渐由学术主导的"二轨"层面向政府决策和可行性操作的"一轨"层面靠拢.中国云南在其中发挥着重要的作用,中国与孟加拉国的经贸和通道建设合作为该机制提供了动力,印度的该地区跨国经济合作的认知也在发生积极的转变,并且该机制业已同其它地区、次区域经济合作产生互动关联.尽管如此,该机制的运作和深化仍面对某些不可忽视的挑战.