善与恶的解析

善是客体对于主体的需要、欲望、目的的效用性,是客体有利于满足主体需要、实现主体欲望、符合主体目的的属性善就是欲望的满足.所以,孟子日"可欲之谓善."善分为道德善与非道德善.道德善是行为主体对于社会创造道德的需要、欲望、目的的效用性,是符合道德目的的行为.反之,非道德善则是行为主体对于非道德的需要、欲望、目的的效用性,是符合个人目的的属性.     

A Puzzling Paradox: Advancements in Reproductive Technology and New York's Ban on Commercial Surrogacy Agreements

With infertility on the rise in the United States and the legalization of same sex marriage, it has become increasingly difficult for many Americans to start a family. Advancements in modern medicine have addressed this issue and now couples can create their family through surrogacy. However, New York's current laws have not caught up to the changing times and surrogacy agreements are still invalid and unenforceable. This Note proposes the repeal of New York's surrogacy ban and the adoption of legislation to recognize and enforce surrogacy agreements in order to bring New York's laws within the purview of modern medicine.     

Mainstream Revolutionaries: Sinn Féin as a “Normal” Political Party?

Despite the seismic shift of Sinn Féin from being the “mouthpiece” of the Provisional Irish Republican Army to the largest nationalist force in Northern Ireland, the party continues to project its objectives within the revolutionary politics and tradition of 1916. Whilst various groups across the island of Ireland stress their loyalty to Irish independence and allegiance to their republican forefathers, 2016 also plays host to devolved assembly elections in Northern Ireland. The centenary of the Easter Rising is therefore a poignant moment to reassess republican politics, more specifically, the relationship between the armed revolutionary tradition and constitutionalism. Within the post-peace process era Sinn Féin have been accused of maintaining an autocratic culture and an intra-party framework that is more representative of a clandestine revolutionary organisation than a political party. Yet, simultaneously, Sinn Féin have not been immune to the pressures experienced by other modern political parties, bound by the laws of electoral competition and driven by office-seeking priorities. In order to explore Sinn Féin within the modern political arena, this article firstly examines the broader debate surrounding how armed groups make the transition into constitutional politics. Secondly, public opinion survey data is used to judge the basis of Sinn Féin's electoral appeal. Finally, internal party documents are used to examine party structure, intra-party democracy, and professionalisation in order to judge the extent to which Sinn Féin have completed the transition from being a “mouthpiece” to their armed counterpart, towards being a “normal” political party.     

The Effect of Advice on Negotiations: How Advisors Influence What Negotiators Do

Studies of negotiations often overlook, or at least do not fully account for, the important role played by people who advise negotiators. Often deliberately hidden from view, advisors have important but unrecognized influence on the negotiation dynamic. In this article, I explore the roles and methods of advisors in the negotiation process, drawing on role theory and survey research conducted in 2013 among approximately seventy advisors at the European Union Council of Ministers. I define advice as “a communication from one person (the advisor) to another (the client) for the purpose of helping that second person determine a course of action for solving a particular problem” and consider the nature of this advice and the range of relationships that may exist between advisors and their clients. Advising is much more than the mere transmittal of information from advisor to negotiator and that for advice to be effective a relationship must exist between the two parties. I then identify three models of the advisor–negotiator relationship. The first is the advisor as director, wherein the advisor tends to take control of the negotiating process, directing the negotiator toward actions that she or he should take to achieve success at the negotiation. The second is the advisor as servant, in which the advisor merely responds to the demands of the client for help and guidance in the negotiation. And the third is the advisor as partner, wherein advisor and negotiator jointly manage the process and solve the problem together. Finally, I explore the factors that lead advisors and negotiators to adopt each of these three models, the various advising styles that advisors use, and the differing effects on the negotiation process that these elements may have, drawing on historical examples as well as survey data from the EU Council of Ministers.     

论遗失物的所有权归属——评《物权法》第107条与第113条

《物权法》对拾得遗失物问题进行了规范,并在其第113条和第107条分别规定了遗失物未被转让时和已被转让时两种情况下的所有权归属。《物权法》第113条没有规定拾得人一定条件下取得遗失物所有权,十分遗憾。《物权法》第107条在规范遗失物已被转让时采"例外承认主义",殊值赞同;但没有规定有偿回复中的公共市场、盗赃物的善意取得、无记名有价证券与货币。另外,《物权法》第113条的位置也值得商榷。     

中美知识产权“刑事门槛”争端的法律问题

2007年4月美国就中国知识产权刑事保护机制问题提交WTO争端解决机构(DSB)以寻求解决。这是DSB受理的第一起就知识产权刑事保护机制问题所引发的争端。本案的争议核心是如何解释作为"刑事门槛"的《TRIPS协定》第61条所规定的"商业规模"。通过DSB解释实践,可以看出,"商业规模"的解释主权应属各成员所有,但解释边界受《TRIPS协定》第61条相关条件的限制,中国知识产权刑事保护立法机制符合《TRIPS协定》,没有必要继续下降"刑事门槛"。美国对中国知识产权的施压应由单纯要求"降低刑事门槛"转变为"如何在降低正版产品的价格情况下加大对盗版的刑事打击力度"。     

我国区域行政立法协作:现实问题与制度完善

区域行政立法协作是我国区域经济一体化发展的必然要求。实践中地方政府在行政立法领域的协作主要集中于规章冲突的事后解决机制,欠缺规章制定之前的事前协作。对此,美国统一州法委员会、建议性州立法委员会以及州际协定在协调州际立法上所体现出来的协作理念和模式给我们提供了可资借鉴的经验。在借鉴经验的基础上,完善我国的区域行政立法协作机制,需要健全行政协议制度、政府间信息公开和交流制度,成立区域行政立法协调委员会。     

Irish Unification After Brexit: Old and New Political Identities?

This article contends that the outcome of the prolonged dispute about the future constitutional status of Northern Ireland (NI) will be shaped by the emerging dynamic between ‘old’ and ‘new’ political identities in NI. The ‘old’ identities conceived political outcomes as defined by two monolithic ethno-cultural blocs: nationalism (alongside republicanism) and unionism (alongside loyalism). Nationalism and unionism formed the ‘two communities model’ of consociational governance enshrined in the Belfast/Good Friday Agreement (B/GFA). Today, despite the Agreement being in existence for over twenty years, growing numbers of citizens identify with neither ethno-cultural category. Recent elections indicate that more pluralistic ‘new’ political identities are gaining ground at the expense of traditional alignments. The implications for NI's constitutional future are likely to be profound. The emerging constituency of non-aligned voters will have a decisive impact on the final outcome of any border poll on Irish unification. Such voters typically support the cross-community Alliance Party, the Greens, or the left People Before Profit (PBP) party. Crucially, these parties are concerned as much with economic and social issues as constitutional questions. In the context of growing political fluidity, the result of any future border poll remains contingent.     

Motivation and Intervention in the Northern Ireland Peace Process: An Interview with President Bill Clinton

The role of former U.S. President William Jefferson Clinton in the Northern Ireland peace process has been acknowledged as an example of political risk‐taking and leadership driven by political interests and strategic post–Cold War aims. The tendency to examine Clinton's role from the perspective of international and global policy objectives, however, has obscured consideration of his motivational role in the Northern Ireland peace process and of how he moved between encouragement and intervention to help the political parties reach a settlement. This article, which is drawn from an extended interview conducted with Clinton in 2017, seeks to paint a more comprehensive picture of Clinton's participation in the peace process, showing how his combination of motivational and interventional skills enabled him to help convince others of the need to take risks for peace and gave him greater influence and leverage over the peace process as a result.     

Let's Make a Brand New Start of it in Old New York: Using Mediation to Resolve Open Adoption Disputes

There is no general consensus of how to handle disputes arising from open adoption agreements. Some states have statutes mandating mediation, but New York does not. This Note proposes that New York enact a statute that mandates adoptive and birth parents use mediation for disputes arising from open adoption agreements. The proposed statute provides a comprehensive approach to mediation by setting forth when mediation is appropriate and when it is not. The statute will also provide when the child's preference can be taken into consideration, and who will pay for mediation.