合同债权与仲裁条款转让的再审视——基于实体法、程序法和冲突法的视角

合同转让时,尤其是合同权利转让时仲裁条款是否随之转让的问题,是近年来国际商事仲裁领域的一个重要话题。目前,国内理论界的主流观点以及司法实践支持仲裁条款自动转让。但仲裁条款自动转让的理论依据并不充分,也未解决所有问题,而且对于仲裁条款转让的论证仅仅限于国内法上的视角,并未考虑国际合同转让中仲裁条款的效力和相关的法律冲突与法律适用等问题。本文旨在从实体法、程序法和冲突法的多维角度,进一步探讨合同仲裁条款转让的理论和实践问题,并对当前国内外的立法与实践进行评判,以期进一步完善我国国内的法制和实践。     

Reporting likelihood ratio for casework in firearm evidence identification

Likelihood ratio (LR) plays an important role in estimating the weight of evidence in firearm evidence identifications. LR is computed from a statistical model including the distribution of the known-matching (KM or within) and known-nonmatching (KNM or between) comparison scores. Current LR procedures rely on KM/KNM scores from existing reference firearm toolmark data sets or alternatively from generating a set of test fires using multiple firearms. Both procedures may contain theoretical or practical issues which may hinder the LR procedures from reporting an unbiased LR estimation in casework. In this paper, a reference data set was established from a set of firearms, each test-fired two cartridge cases, resulting in a basic data set and a control data set. The congruent matching cells (CMC) method was used to generate CMC scores that are used to fit in the KM/KNM statistical distributions for LR estimation. In the initial test, 130 firearms from eight manufacturers were used for generating a reference data set consisting of 260 cartridge cases representing 130 KM and 8385 KNM pairwise breech face images. Test results showed that the KM and KNM distribution intersect at CMC = 2, which is equivalent to LR = 1 (equally to support both the prosecutor and the defense propositions). When the CMC threshold is increased to 6 or more, the LR values are higher than a million, which can provide extremely strong support to the conclusion of the same firearm (or the prosecutor's proposition) in the casework of firearm evidence identification.     

A molecular classification of moles and its use in filiation tests

Pregnancies, including ones that follow sexual assaults, occasionally produce hydatidiform moles. The alleged fathers (AFs) of moles have been tested for paternity by identifying the mole's locus phenotype—the one or two visible paternal obligate alleles (POAs) per locus. The probability that the mole inherited the POAs from the AF was divided by the probability that the mole inherited the POAs from a random man. This likelihood ratio (LR) would increase if the mole's specific genotype was known. Moles are generated in five different ways that produce five distinct genotypes. Examining a mole's multilocus STR profile reveals a mole's pathogenesis, determines locus genotypes, and increases paternity LRs.     

Biometric Security and Privacy Using Smart Identity Management and Interoperability: Validation and Vulnerabilities of Various Techniques

The central position of this article is that validation and interoperability are paramount for the effective and ethical use of biometrics. Illuminating the relevance for policymakers of the science underlying the security and privacy aspects of biometrics, this article calls for adequate and enforceable performance metrics that can be independently corroborated. Accordingly, the article considers biometrics and forensics for the dual challenges of addressing security and privacy using smart identity management. The discussion revolves around the concepts of “personally identifiable information” (PII) and interoperability with emphasis on quantitative performance analysis and validation for uncontrolled operational settings, variable demographics, and distributed and federated operations. Validation metrics includes expected rates of identification/misidentification, precision, and recall. The complementary concepts of identity and anonymity are addressed in terms of expected performance, functionality, law and ethics, forensics, and statistical learning. Biometrics encompasses appearance, behavior, and cognitive state or intent. Modes of deployment and performance evaluation for biometrics are detailed, with operational and adversarial challenges for both security and privacy described in terms of trustworthiness, vulnerabilities, functional creep, and feasibility of safeguards. The article underscores how lack of interoperability is mostly due to overfitting and tuning to well‐controlled settings, so that validation merely confirms “teaching to the test” rather than preparation for real‐world deployment. Most important for validation is reproducibility of results including full information on the experimental design used, that forensic exclusion is allowed, and that scientific methods for performance evaluation are followed. The article concludes with expected developments regarding technology use and advancements that bear on security and privacy, including data streams and video, de‐anonymization and reidentification, social media analytics and cyber security, and smart camera networks and surveillance.     

船员外派企业之雇主责任浅析

法律的制定往往赶不上社会发展的步伐,我国现行有关船员外派的法律已经远远不能满足实践的需要。基于我国船员外派的社会现状,根据我国现行法律对船员外派企业的规定,分析了船员外派企业的法律性质,致力于寻找一种能够确定被外派船员损害的责任主体的机制。结合国外有关船员外派的先进立法,从雇主责任分担的角度提出合理的立法建议,为船员的权利保护提供有效的法律救济途径。     

Background Levels of Salivary-α-amylase Plus Foreign DNA in Cases of Oral Intercourse: a Female Perspective

Saliva plus DNA from a suspect is commonly encountered in sexual assault cases on bodily swabs. However, without background knowledge, the weight of this evidence is unknown. It may indicate the presence of saliva resulting from cunnilingus, or it may represent indirect transfer. In this study, females who refrained from cunnilingus donated 43 items of underwear and 19 vaginal swabs. The samples were subjected to Phadebas^®, RSID^™-Saliva and mRNA profiling and were subsequently DNA-profiled to determine the prevalence of background saliva in the female population. The results report that 15.8% of females who refrained from cunnilingus were positive for saliva and a further 10.5% also had DNA from unknown source(s). These findings of the rate of indirect transfer were evaluated with the Bayesian approach, and it was found that the evidence of saliva plus a high foreign DNA source adds moderately strong support to the allegation of cunnilingus.     

应收账款转让与应收账款质押冲突问题浅析

商业银行的资产业务不断地发展,传统的授信模式也随之发生改变,以往多以房产抵押或者信用为主,现今增加了担保措施和还款来源。应收账款作为还款来源以及担保措施之一也日益凸显重要性,在实际操作中,主要包括应收账款转让和应收账款质押。为了利益最大化,债权人可能重复处理债权,将债权同时用于转让和质押,以获得更多的融资的情形,二者并存时难免会产生冲突。所以,应从应收账款转让与应收账款质押的基础理论出发,分析相关法律关系以及并存现状,从而对确立冲突解决规则提出建议。     

Risk-Taking,Recklessness and HIV Transmission: Accommodating the Reality of Sexual Transmission of HIV Within a Justifiable Approach to Criminal Liability

This paper examines the issue of justifiability of risk-taking with regard to the transmission of HIV. It considers a number of factors, such as seriousness of risk, likelihood of risk occurring, social utility of conduct involved, ability to use precautions and victim awareness of the risk and willingness to accept it, which combined help to determine whether the taking of a risk is reasonable or not. It argues that by considering the issue of justifiability in this way, it is possible to accommodate the wider social, psychological and public health realities of HIV. It further argues that a criminal law which fails to take account of such considerations is not only overly broad in its application but ultimately risks punishing those who are not in fact deserving of punishment. I would like to thank the two anonymous reviewers for their comments on an earlier draft.     

对抵押权顺位的法律问题研究

抵押担保是实践中常见的一种防范债权风险,保障交易安全的债权担保方式.由于抵押关系中不转移担保物的实际占有,在同一物上设立多个抵押权成为可能.抵押物变卖时,并存于同一抵押物之上的数个抵押权以什么顺序获偿涉及抵押权能否实现以及能够实现的范围,由此引发了抵押权顺位的问题.我国《担保法》及其司法解释和《物权法》就抵押权顺位的规定均提之甚少,而抵押权的顺位实则蕴涵着抵押权人可能获偿的利益,对抵押权人来说具有重要的意义,同时也影响着抵押物所有人的再融资,所以,对抵押权顺位的研究颇具现实意义.     

商标侵权之判断

商标侵权如何进行判断,是商标法理论与实践中极其重要的课题,由于我国商标法立法中关于商标侵权判断的规定存在较多争议,司法实践中也遇到各种问题均难以解决,文章就商标侵权的判断核心进行论述,分析了各国立法例,探讨了有关商标侵权判定标准的合理立法模式。