论网络服务提供者的侵权责任

我国采取了以归责要件为核心的网络服务提供者侵权责任立法模式。此种立法没有充分注意到免责要件对网络服务提供者侵权责任的限制作用。它仅以信息网络传播权为主要保护客体,而对其他权利缺乏周全保护。为克服这种弊端,宜采取目的性解释的方法来理解网络服务提供者的免责条款与归责条件之间的关系;在判定网络服务提供者侵权责任之前,应优先考虑免责条款适用的可能性。建议制定以免责条款为核心的网络特别法。     

The Persistence of Sperm and the Development of Time Since Intercourse (TSI) Guidelines in Sexual Assault Cases at Forensic Science Ireland,Dublin, Ireland

The persistence of sperm using confirmatory microscopic analysis, the persistence of sperm with tails, time since intercourse (TSI) analysis, and results from the acid phosphatase (AP) reaction from approximately 5581 swabs taken from circa 1450 sexual assault cases are presented. The observed proportions of sperm in the vagina and anus declines significantly after 48 h TSI, and sperm on oral swabs were observed up to 15 h TSI. The AP reaction as a predictor of sperm on intimate swabs is questioned. All AP reaction times gave a low true positive rate; 23% of sperm‐positive swabs gave a negative AP reaction time. We show the AP reaction is an unsafe and an unreliable predictor of sperm on intimate swabs. We propose that TSI not AP informs precase assessment and the evaluative approach for sexual assault cases. To help inform an evaluative approach, TSI guidelines are presented.     

BOUNDARY OF CRIMINAL RESPONSIBILITY OF INTERNET SERVICE PROVIDERS — A LESSON FROM THE QVOD CASE

The Qvod case in 2016, in which the Chinese video-sharing site Qvod was convicted of the crime of disseminating pornographic materials for profits, provoked heated debates regarding the criminal responsibility of internet service providers (ISPs) in China. Using the Qvod case as an example, this paper first discusses the definition and the legal obligations of ISPs, and argues that we should decide the criminal responsibility of ISPs according to their functions and the content of their services. This paper further analyzes four major issues associated with the criminal responsibility of ISPs, including accomplice responsibility, accessory with neutral conduct, perpetrator by action or omission and ideal concurrence (Idealkonkurrenz).     

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.     

What Makes a Good Alibi? A Proposed Taxonomy

A taxonomy of alibis is proposed involving two forms of supporting proof: physical evidence and person evidence. Levels of physical evidence and person evidence were combined to create 12 cells in the taxonomy. Participants (n = 252), who were asked to assume the role of detectives, evaluated alibis representing these 12 cells. The believability of the alibis generally followed the taxonomy's predicted pattern, but physical evidence, when present, tended to overwhelm the person evidence more than had been expected. In addition, alibi evaluators seemed to not consider the possibility that a stranger who corroborated an alibi might be mistaken about the identity of the person. Trait inferences regarding the alibi providers tended to follow the believability data, even when the traits themselves were not relevant to believability of the alibi. We call for the development of a literature on the psychology of alibis, recommend the taxonomy as a framework, and suggest several avenues of inquiry.     

European national news

The regular article tracking developments at the national level in key European countries in the area of IT and communications – co-ordinated by Herbert Smith 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 compliment 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.     

完善医疗制度 缓和医患关系

随着社会的发展,医疗纠纷数量日趋增多,成为卫生部门、医院、医生的最大难题,是继医疗改革之后的又一备受社会各界关注的热门话题,医患关系成为社会最不和谐的声音。医患关系紧张、医疗纠纷增多与我国目前相关制度、法规不健全有极大的关系。本文探讨通过建全相关制度、法规以缓和医患矛盾的问题,试图寻找合理处理医疗纠纷的办法。     

Social Impact Bonds: Implementation,Evaluation, and Monitoring

Traditional approaches to public policy increasingly fail to resolve social challenges, particularly in the field of criminal justice. High rates of juvenile recidivism, for example, are often linked to inequality in education and persistent, long-term unemployment—factors which, while complex, are nonetheless conducive to preventative strategies.

Social impact bonds (SIBs) are “pay-for-success” programs that attract private-sector, upfront funding for social interventions. If the program achieves agreed targets, taxpayer funds repay the investor. If the program fails to meet agreed targets, investors take the loss.

This innovative form of social finance through public–private partnership has helped spur efficiencies and improvements in the provision and outcomes of criminal justice services. However, the success of a SIB depends on careful implementation, evaluation, and monitoring.     

Falling in love with a [sperm] warrior: conscripting women’s wombs to the dissemination of a religio-political ideology

This article focuses on the screening and marketing of sperm in Israel as a mechanism for enlisting women’s wombs to political goals. The background for the analysis is the recent rise in demand for sperm from combat soldiers during the war between Israel and Hamas. The data-set for the project is comprised of multiple sources which converge to provide evidence for the transfusion of Zionist ideology into sperm donation. The article suggests the compatibility of the venerated status gained by donors who are Israeli Defense Force combatants with Zionist militarism. The banks screen candidates for sperm donation based on their military service and military health profile. The discursive climate which glorifies ‘warriors’ permeates sperm marketing, contributing to the cultural reproduction of a militaristic ideology. The article concludes by contending that sperm banks provide a platform for a subversive discourse that triggers Enloe’s thesis of patriotic motherhood and the role of women in the process of militarization.     

精斑检验干扰因素的研究

目的研究精斑检验中预试验与确证试验结果的关系,以及取材时间、生活习惯对确证检验结果的干扰。方法取376例阴道拭子,用酸性磷酸酶(ACP)染色法、斑点ELISA法和抗人精PSA金标试纸法检测检测精斑。结果ACP阴性时,可检出P30、精子,性生活后精斑确证检验大部分阳性检出分布在48小时以内样本中,结果经X2检验,P<0.01,差异性显著,而不同的生活习惯对P30检测具有显著性差异。结论研究结果对精斑的检验以及检材的提取具有推广应用和指导性意义。