维护自由贸易与保护知识产权权利的内在冲突和司法考量之进路

世贸组织的根本宗旨是推动全球贸易的自由化,逐步减少和消除阻碍贸易发展的壁垒。保护附加于商品上的知识产权(特别是商标权、专利权)在一定条件下会阻碍自由贸易发展。针对如何看待和协调WTO一系列框架文本中消除贸易壁垒和保护与贸易有关的知识产权协定的关系,从世贸组织的相关法律文本出发,通过我国法律和欧盟的典型判例来实证分析研究上述问题,并总结欧盟司法经验,揭示在保护知识产权的基本原则下,运用比例关系测试法就具体个案衡平考量解决两者冲突的司法进路。     

契约精神与税收筹划的合理界限

在市场经济条件下,税收筹划是一种普遍的以增加纳税主体可税性收益为目的的经济活动安排,但对税收筹划的法理论分析却非常薄弱。从对现代契约精神的尊重与实现出发,剖析税收筹划深层次的法价值理念,税收筹划中契约精神的延展、异化及理性复归等问题,试图在理论上解决税收筹划的"弱理论性"问题。     

Positive Resolution of Childhood Sexual Abuse Experiences: The Role of Coping,Benefit-Finding and Meaning-Making

Resolution of the trauma of childhood sexual abuse (CSA), and the current adjustment of 60 adult female CSA survivors were explored through qualitative and quantitative analyses of their coping strategies, perceived benefits, and meaning-making attempts. While the majority of the women (87%) perceived at least some benefit resulting from coping with the CSA experience, many (29%) found it impossible to make any meaning of their trauma. Specific benefits that were associated with various aspects of positive adjustment (marital satisfaction, better physical health, less isolation) included improved relationships with others, religious or spiritual growth, and improved parenting skills. Some perceived benefits were actually associated with a negative outcome. Increased knowledge of sexual abuse was associated with more isolation and lower marital satisfaction. When positive meaning could be derived from the coping process, the women reported less isolation. Avoidant coping was strongly associated with more depressive symptoms and poorer resolution of abuse issues. Results highlight the importance of considering coping strategies and cognitive restructuring efforts in designing therapeutic interventions with this population. Portions of this paper were presented at the annual meeting of the Midwest Psychological Association, May 2004, Chicago, IL.     

Alcohol Consumption and Females’ Recognition in Response to Date Rape Risk: The Role of Sex-Related Alcohol Expectancies

This study examined the pharmacological and psychological effects of alcohol on women’s recognition of and response to dating sexual aggression. Female participants completed measures of prior sexual victimization experiences, sex related alcohol expectancies, general alcohol expectancies, and drinking habits. Using a 2 (alcohol) × 2 (expectancy) balanced placebo research design, women were exposed to an audiotape date rape vignette and asked to press a button when the man’s sexual advances had gone to far. Upon pressing the button, the tape was stopped and participants were instructed to imagine themselves in the same situation and generate a response describing what they would say and/or do at that point. Results indicated that although alcohol and expectancy were not related to risk perception, individuals who consumed alcohol displayed significantly less resistant role play refusals. A significant interaction between expectancy set and pre-existing sex-related alcohol expectancies was observed indicating participants believing alcohol affects sexual behavior generated less resistant refusal responses when they expected to receive alcohol. Moreover, for those who expected to receive alcohol, stronger pre-existing sex-related alcohol expectancies predicted less resistant refusal responses over above the effects of blood alcohol level and general alcohol expectancies. The implications of these findings are discussed.     

Co-Occurrence of Interparental Violence and Child Physical Abuse and It’s Effect on the Adolescents’ Behavior

This study analyzed the impact of the co-occurrence of parental and interparental violence on the behavior of adolescents. Results reveal that the co-occurrence of interparental violence and child physical abuse has a significantly greater negative impact on behavior than does exposure to interparental violence only. Moreover, participants, who are both abused and exposed to interparental violence, exhibit internalized and externalized symptoms falling within the clinical range more frequently. Exposure exclusively to interparental violence also has definite impact; for example, teens who are only exposed to interparental violence exhibit internalized and externalized symptoms more frequently than do those who have been neither subject to physical abuse from a parent nor exposed to interparental violence. Implications of the findings are discussed.     

新闻立法刍议

新闻活动对国家和公民的生活有着举足轻重的影响作用。新闻活动需要用法律来规范，新闻立法的基本原则有两个方面，一是新闻的自由性；二是禁止新闻权力滥用。     

叶公好龙:刑事证人出庭的一个寓言

我国目前呼唤"证人出庭"是一个叶公好龙式的伪命题,无论是法官、控辩双方、被害人,还是警察等都没有做好证人出庭的准备。其中书面证言确认制度、"大司法机关"体制、证人全程伪证责任等因素促生法官不情愿证人出庭的心理,而警察出庭作证制度缺乏"怀疑权力"的文化传统和个人积极性。进而言之,目前关于证人出庭具体配套规则的对策也有难以克服的缺陷。而我们要认真对待实践而不至于做脱离实际的制度设计。     

对反垄断法规制的垄断行为的分析与比较

市场经济中垄断行为纷繁复杂、多种多样。根据不同的分类方法,对垄断行为可做不同的分类,对各种不同类型的垄断行为及其相互变化关系进行比较研究有助于我们加深对其经济和法律性质的认识和了解。根据垄断力来源及其程度的不同,将垄断行为分为联合限制竞争行为、企业合并审查、滥用市场支配地位、行政垄断四大类;通过对它们进行经济分析和比较研究,从理论上深刻地揭示了它们之间的相互变化关系及其经济法律性质,为反垄断立法与执法提供了充分的理论依据。     

Problem Drinking, Jealousy, and Anger Control: Variables Predicting Physical Aggression Against a Partner

Alcohol use and intimate partner violence (IPV) are significantly related, but only a subset of individuals who drink are aggressive and relatively little is known about what moderates this relationship in community samples. Two risk factors, anger control and jealousy, were hypothesized to moderate the relationship between IPV and problem drinking in a sample of 453 community couples. A significant three-way interaction indicated that men with jealousy problems, but not anger control problems, were most likely to show the strongest association between problem drinking and IPV. In accord with the multiple threshold model of IPV, specific combinations of risk factors appeared to represent different thresholds in which problem drinking influenced the likelihood of IPV.     

DIVORCE AND THE FAMILY COURT: WHAT CAN BE DONE ABOUT DOMESTIC VIOLENCE?

Approximately 50% of couples who have separated report being victims of violence and/or emotional abuse by their former intimate partners. Family courts can make an important contribution toward reducing the number of intimate partners who report being victims of domestic violence and abuse during and following their participation in divorce proceedings in three ways. First, increase opportunities for participation in nonadversarial procedures. Second, implement mandatory assessment/screening for domestic violence using field‐tested instruments that link subscores on sets of items (e.g., control motivated violence, conflict instigated violence/abuse, substance abuse associated violence/abuse) with appropriate community‐based treatments and/or resources. Third, educate family court judges, lawyers, mediators, and other court personnel in the dynamics of domestic violence generally, as well as the dynamics associated with separation/divorce.