Hong Kong＇s Case Law System in the Changing Constitutional Order

回归前的香港在港英宪政秩序下建立了英式司法体系,经过长期英国普通法传统的培养、训练以及结合香港本土情况的司法实践积累,形成了英属司法区的判例制度。回归初期香港处于新旧宪政秩序转型和过渡的阶段,中央与特区之间、大陆法制与香港普通法传统之间的摩擦和冲突在所难免,香港的判例制度因此呈现出新的特点和变化。然而正是在这种相互冲突和相互摩擦的过程中,中央与特区、大陆法制与香港普通法传统寻找到了相互磨合和相互适用的方式和路径,香港判例制度的发展也因此从中获得了新的生命意义。     

论政府对现代企业的法制监管——以日本核泄漏案为例

随着全球经济一体化以及区域经济集团化的纵深发展,市场经济已促使各国政府与企业的关系日益密切。这一密切的联系是建立在目标统一以及兼有冲突与合作特征的职能分离基础之上的。日本核泄漏事件引出了突发事件背后隐藏的日本政府与民营企业之间官商勾结、监管失控等重大问题,对目前我国如何正确处理政企关系,明确各监管部门的职责,充分发挥市场自由竞争及政府的调控作用,制定配套的法律来弥补监管漏洞等具有重要的警示作用。     

The Google conundrum: Perpetrator or facilitator on the net? – Forging a fair copyright framework of rights, liability and responsibility in response to search engine 2.0 – Part I: The Google Images Search Engine

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a case study, this paper will look at the two main areas of dispute over the operations of information locator tools and services that either threatens search engine functionality and efficiency or weakens copyright holders’ exclusive rights. It proposes a concerted set of solutions through a reassessment and amendment of copyright law to optimize the social benefits and objectives of both the copyright regime and technological innovations in the electronic model of information archiving, indexing and delivery. A fair distribution of responsibilities and allocation of rights and liabilities will be suggested. In the process, due consideration will be given to both public and private interests, with the former taking precedence; while the recommended solutions will be made within the currently outdated framework for Internet intermediary protection (i.e. safe harbor laws) and exceptions (i.e. specific statutory exemptions and the general fair use defense) under the existing copyright regime. Thus, the proposed changes will be far reaching without being too radical a departure from current law, an evolution that will likely be more acceptable and realistic a solution to the problem.This paper is published in two parts. Part One of this paper will deal with the challenges to the copyright regime posed by the operations and technology behind the Google Images Search Engine, while Part Two that will be published in the subsequent edition of the CLSR will assess the benefits of the Google Books Search Project vis-à-vis the effects it will have on the scope of copyright protection. Recommendations are made to copyright law to accommodate both functions while generally preserving the main objectives of copyright protection.     

危险驾驶罪的立法理念与立法完善探讨

刑法修正案（八）首次将＂醉驾＂、＂飙车＂行为以危险驾驶罪入刑。鉴于民众甚至司法人员对该罪的认识上和操作中均存在不少亟待澄清和回应的问题,诸如该罪立法理念上与刑法谦抑性是否存在着矛盾和冲突？如何认识和处理该罪中＂罪过倒挂＂问题？如何理解和适用该罪的追诉时效问题？如何看待和处理该罪的行为方式过窄的问题？通过对以上诸问题进行阐释进而提出了完善相关立法的构想及其路径。     

David Cameron's ‘Problem’ with Women: Representing Women in the Coalition Government

Prior to the election in 2010 David Cameron pledged that his first cabinet would comprise one‐third women and would be the most family friendly ever. Since forming the Coalition Government, he appears to have a ‘problem’ with women. We argue that this problem stems from: the weak representation of women in cabinet and across government; the diminishing resources available to government actors to support gender equality policy; and women's exclusion from the key Coalition networks, both formal and informal, that determine government policy.     

Reciprocal policy diffusion: the regulation of executive compensation in the UK and the US

Because of popular and political pressure, governments have been compelled to regulate ‘excessive’ executive compensation and search both a policy and political solution. In this paper, I seek to establish the mechanisms of policy learning, competition, and emulation by examining American and British regulatory policies of executive compensation that show evidence of reciprocal diffusion, i.e. from the US to the UK and vice versa. The evidence suggests that during the past two decades, the extent of reciprocal policy diffusion varied and was primarily driven by policy learning. Using published government reports, press releases, public hearings, newspaper articles, and interviews, I demonstrate that reciprocal learning occurred because one country's policymakers and practitioners explicitly discussed and/or referred to the practices in the other country when deciding to adopt a specific policy solution to the problem of excessive executive pay. I discuss the implications for the literature on diffusion and point out avenues for future research. Copyright © 2012 John Wiley & Sons, Ltd.     

美国预测性信息披露免责制度研究——兼论中国证劵市场“安全港”制度之构建

预测性信息披露免责制度降低了上市公司潜在的诉讼风险,是充分尽到诚信义务的信息披露人的保护伞。可以从美国"安全港"各项规则入手,借鉴相关理论及实践经验,结合我国国情,提出完善我国预测性信息披露免责制度之构想,以期维护信息披露主体之正当利益,规范并鼓励我国上市公司预测性信息的披露。     

Party unity and presidential dominance: parliamentary development in the fourth republic of Ghana

Political power in contemporary sub-Saharan Africa is often portrayed as being highly informal and heavily personalised. The assumption that personalised politics is how ‘Africa works’ has led to the neglect of the study of Africa's formal institutions, including parliaments. This article assesses the position of the Parliament of Ghana under the Fourth Republic. It displays evidence suggesting that over successive parliamentary terms parliamentary committees became increasingly adept at handling legislation, and inputting into the policy process. It also shows that the parliament was increasingly able to oversee the implementation of legislation. Although the findings of hitherto undocumented progress represent a valuable nuance, the argument that the parliament became increasingly able to input into the legislative process says exactly that; while the parliament became increasingly capable of amending legislation rarely was this witnessed. The article argues that parliamentary development in Ghana has been a function of three interacting structural factors: the constitution; unified government since 1992; and political party unity. The strong partisan identities of legislators from the two major political parties – the New Patriotic Party (NPP) and National Democratic Congress (NDC) – provide the executive with extra leverage to control the parliament. Throughout the Ghanaian parliament is juxtaposed with the Kenyan National Assembly. More substantially, the article seeks to force a revision of the dominant narrative that generalises African party systems as fluid and fragmented, and African political parties as lacking any recognisable internal cohesion or ideology.     

《气候变化框架公约》履行的环境法解释与方案选择

《气候变化框架公约》及其议定书是人类应对气候变化所制定的总体规划和实施细则,但是,由于其和其他环境法公约一样具有环境法的"软法"特质,一些《气候变化框架公约》的履行机制出现了许多值得探究的边白。以"震慑型"方案还是"激励型"方案为主,需要从《气候变化框架公约》的履行理论切入,深入剖析,对此两种方案进行理论、实证博弈分析,得出《气候变化框架公约》履行方案的应有选择,为今后其他国际环境条约的履行提供相关指导。     

论我国行政层级监督的现实困境与路径选择

在行政权监督体系中,行政层级监督是其中不可缺失的重要一环。然而,在长期的行政实践中,我国的行政层级监督囿于诸多因素限制并未发挥其应有的作用。基于此,本文在简要分析我国行政层级监督现实状况的基础上,针对目前行政层级监督中存在的问题提出有针对性的建议,以促进我国行政层级监督制度的完善。