试论“后悔权”设立之法学证成

作为舶来事物,＂后悔权＂一经浮出水面,即遭受或赞或弹的命运。其中的质疑不无道理,但又有失偏颇。据此,厘清＂后悔权＂之真正意旨,区别相关权利,奠定对其讨论的正确基础实为必须且为必要。此外,＂后悔权＂作为一个货真价实的＂国际惯例＂,无理由将之拒之门外,但为避免＂水土不服＂的尴尬,其设立必须兼顾本土实际,即：一切从实际出发,设立中国特色的＂后悔权＂制度——＂有限后悔权＂制度。     

中韩农业贸易中的政治性贸易保护问题研究

在中日韩三国自由贸易区谈判即将召开的情况下,韩国农业领域的贸易保护问题已经成为阻碍中韩FTA签订的重要问题。韩国农业领域的贸易保护倾向不仅根源于福利国家体制和国家干预制度,还和韩国独特的历史和现实政治情况紧密关联,这就要求我国政府在解决该问题时除了遵循FTA基本原则外,更要兼顾社会和政治方面的对韩协调,整合中国农业出口部门,实现对农业领域自由贸易的政治护持。     

Buying treaties with cigarettes: Internal side‐payments in two level games

Two‐level games models predict that domestic division within a state can alter the extent to which that state is able to reach agreements with other states, and also alter the content of any agreement that is reached. I extend the model by introducing internal side‐payments composed of unrelated domestic issues. Domestic opposition to an international agreement will inhibit cooperation most when the executive and median legislators are in relative agreement about other salient domestic political issues. Domestic opposition to an international agreement will inhibit cooperation least when the executive and median legislators are in relative disagreement about other salient domestic political issues. U.S. ratifications of the NAFTA and the Chemical Weapons Convention illustrate that not all types of domestic division inhibit international cooperation—some can facilitate it     

Ideological Neutrality in the Workplace

This note assesses the decisions of the Court of Justice of the European Union in Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole SA, the first cases dealing with religious discrimination under the Equal Treatment Directive 2000/43. Both cases concerned Muslim women wishing to express their religious beliefs by wearing an Islamic headscarf while working in a private undertaking. The Court held that the employees’ dismissal could not be justified by reference to clients’ prejudices against the headscarf. However, dismissal could be justified if pursued on the basis of a corporate policy of ideological neutrality which prohibited all visible religious, political and philosophical symbols. This note criticises the latter part of the Court's decision for, inter alia, placing too much weight on an employer's freedom to run its business in spite of the grave effects this has on employees’ fundamental right to manifest their beliefs at work.     

认罪认罚从宽与台湾地区刑事协商之比较研究

我国台湾地区在接受"改良式当事人进行主义"后,又于2004年4月引进了刑事协商程序。大陆地区当前试点之认罪认罚从宽制度与我国台湾地区刑事协商程序在适用范围、当事人权利保障及具体程序运作等方面存在差异。对于认罪认罚从宽制度而言,刑事协商程序有可借鉴之处,但更要总结其经验教训。为避免出现理论根基不稳、实践效果不彰的现象,认罪认罚从宽制度应当充分调动控辩双方积极性、强化对犯罪嫌疑人及被告人的认罪自愿性审查、明确值班律师的定位。     

‘The Sky is Falling!’ – Responses to the ‘Going Dark’ problem

The shared concern expressed in the two quotes below is that modern technologies provide criminals with a capability to evade investigation. This comment piece examines some of the policy and legal options available to governments and law enforcement agencies to try to address this concern. While accepting the claim that this phenomenon represents a real challenge to law enforcement agencies, we currently have insufficient evidence to show the true extent of the problem. What this piece does not accept is the implication contained in the quotes, and often made explicit by others, that the use of encryption represents a fundamental and irreversible shift in the balance of power between criminals and their investigators from what previously prevailed. Such claims tend to lack historical perspective, which is one of the themes of this 200th issue of Computer Law and Security Review.     

The introduction of data breach notification legislation in Australia: A comparative view

This article argues that Australia's recently-passed data breach notification legislation, the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), and its coming into force in 2018, makes an internationally important, yet imperfect, contribution to data breach notification law. Against the backdrop of data breach legislation in the United States and European Union, a comparative analysis is undertaken between these jurisdictions and the Australian scheme to elucidate this argument. Firstly, some context to data breach notification provisions is offered, which are designed to address some of the problems data breaches cause for data privacy and information security. There have been various prominent data breaches affecting Australians over the last few years, which have led to discussion of what can be done to deal with their negative effects. The international context of data breach notification legislation will be discussed, with a focus on the United States and European Union jurisdictions, which have already adopted similar laws. The background to the adoption of the Australia legislation will be examined, including the general context of data privacy and security protection in Australia. The reform itself will be then be considered, along with the extent to which this law is fit for purpose and some outstanding concerns about its application. While data breach notification requirements are likely to be a positive step for data security, further reform is probably necessary to ensure strong cybersecurity. However, such reform should be cognisant of the international trends towards the adoption of data security measures including data breach notification, but lack of alignment in standards, which may be burdensome for entities operating in the transnational data economy.     

The European Court of Justice in Bolagsupplysningen: The Brussels I Recast Regulation's jurisdictional rules for online infringement of personality rights further clarified

In the European Union the Brussels Ibis Regulation governs the jurisdiction of Member State courts in civil and commercial matters. The reference for a preliminary ruling coming from the Estonian Supreme Court in the Bolagsupplysningen case offered the European Court of Justice another opportunity to develop its interpretation of the special ground for non-contractual obligations (article 7.2). The European Court of Justice's Grand Chamber ruled that legal persons, like natural persons, have the option of bringing a claim based on the infringement of personality rights by an online publication before the courts of the Member State where their centre of interests is located. It laid down that the centre of interests of a legal person pursuing an economic activity is determined by reference to the place where the company carries out the main part of its economic activities. The victim of a tortious internet publication can only seek an order for rectification and removal of the incorrect information in the courts that have jurisdiction over the entirety of the harm sustained and not before the courts that only enjoy jurisdiction with regard to the damage suffered in their territory.     

Law enforcement access to personal data originally collected by private parties: Missing data subjects' safeguards in directive 2016/680?

Access by law enforcement authorities to personal data initially collected by private parties for commercial or operational purposes is very common, as shown by the transparency reports of new technology companies on law enforcement requests. From a data protection perspective, the scenario of law enforcement access is not necessarily well taken into account. The adoption of the new data protection framework offers the opportunity to assess whether the new ‘police’ Directive, which regulates the processing of personal data for law enforcement purposes, offers sufficient safeguards to individuals. To make this assessment, provisions contained in Directive 2016/680 are tested against the standards established by the ECJ in Digital Rights Ireland and Tele2 Sverige on the retention of data and their further access and use by police authorities. The analysis reveals that Directive 2016/680 does not contain the safeguards identified in the case law. The paper further assesses the role and efficiency of the principle of purpose limitation as a safeguard against repurposing in a law enforcement context. Last, solutions to overcome the shortcomings of Directive 2016/680 are examined in conclusion.     

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.