论股东会决议的合理容错机制 ——《公司法解释四》第4条的解释和适用

股东会决议本质上仍属民法上的决议行为,是一种特殊的多方民事法律行为。当程序瑕疵虽然可归责于公司但显著轻微,未影响表决权人个体的意思表示时,效力可予以维持。这是《公司法解释四》第4条可成立的理论基础。第4条在适用时,要先进行前置判断,过滤部分瑕疵,再进行实质判断,并根据一定标准和规则对各要件一一检验。法院在适用时,只有明确判断思路和标准,才能使这一合理容错机制发挥最大效用。     

Total Ion Spectra versus Segmented Total Ion Spectra as Preprocessing Tools for Gas Chromatography – Mass Spectrometry Data

Alignment of fire debris data from GC‐MS for chemometric analysis is challenged by highly variable, uncontrolled sample and matrix composition. The total ion spectrum (TIS) obviates the need for alignment but loses all separation information. We introduce the segmented total ion spectrum (STIS), which retains the advantages of TIS while retaining some retention information. We compare the performance of STIS with TIS for the classification of casework fire debris samples. TIS and STIS achieve good model prediction accuracies of 96% and 98%, respectively. Baseline removal improved model prediction accuracies for both TIS and STIS to 97% and 99%, respectively. The importance of maintaining some chromatographic information to aid in deciphering the underlying chemistry of the results and reasons for false positive/negative results was also examined.     

环境污染纠纷的法外私力救济及其解决之道

采取"过激行为"解决环境污染纠纷的案件有增长之势,本文指出这种解决方式是一种法外私力救济方式,并探讨了其存在的原因和解决之道。     

Conflict resolution: benchmarking water utility performance

The water sector has economic and symbolic importance for citizens in developing countries. Water utility benchmarking is no panacea for improving water sector performance. Nevertheless, it can contribute to addressing four sources of conflict in the design and implementation of policies: cognitive conflicts (based on technical disagreements regarding how data might be analysed and interpreted), interest conflicts (where suppliers and demanders obtain different benefits and costs under alternative policies), values conflicts (involving ideology or personal preferences regarding water sector outcomes) and authority conflicts (stemming from jurisdictional disagreements over who has the last word). These potential sources of conflict characterise most politically‐charged situations, including water supply management. This article examines the extent to which water utility benchmarking facilitates conflict resolution. Without information on historical trends, current baselines and realistic targets, conflicts over reforms to improve sector performance can weaken systems that are already fragile, particularly those in developing countries. This article attempts to improve our understanding of the links between sources of conflict, government approaches for dealing with conflict and the role of water utility benchmarking as a complementary strategy for addressing policy issues. Benchmarking is one way regulators and managers can promote conflict resolution that allows participants to focus on performance. The principles apply to all sectors with significant state oversight. Copyright © 2007 John Wiley & Sons, Ltd.     

网络广告中的法律问题与解决方式

网络广告的数字技术制作和表示、可链接性、无控性、交互性等特点,对广告的法律调整与规范提出了新的问题.由于网络具有与传统媒体迥然不同的开放式的互动结构,对这些问题我们应当采用一种比较缓和的方式来解决,具体包括政府管理与ISP、ICP自律相结合,法律与业界规章相结合,把网络广告纳入《广告法》的调整范围之中,国际管理与国内管理相结合.     

An evaluation of Montana's child welfare court pre-hearing conference pilot project

Pre-hearing conferences are a form of alternative dispute resolution that have been implemented into the child welfare court process. Montana recently piloted a pre-hearing conference model to occur before the first hearing on the case. The goal of the pilot was to increase discussion and resolution of contested visitation, placement, and service issues and to better engage parents in the process. Data were collected across multiple years to explore the effectiveness of the pilot in improving outcomes for children and families. Analysis of the data revealed a positive relationship between program implementation and timelier permanency. Parents who attend and have higher levels of participation in the pre-hearing conference are also more likely to reunify.     

中西纠纷解决规律浅析

中西纠纷解决的规律主要体现在七个方面,对这七个方面的准确把握,利于中国在法治进程中体现中国特色和国际经验,从而利于中国当代社会纠纷的解决。     

警察权威对乡村社会纠纷解决的有效性推演及其建构思路

从权威客体角度看,纠纷解决依靠的是权威施与的影响力。近年来警察出于对乡村社会治安管理的需要承担了相当数量的民间纠纷解决工作,此现象建构在权威客体对警察权威的有效性预期之上,既体现警察作为公共资源的易获取性,也是权威客体对警察权威合法性产生认同的结果。这种认同本质上发展于警民实践活动的利益共同体中,应通过对乡村社会警民利益共同体的建设强化民众对警察权威的认同,借此重塑警察权威,提高基层警队的纠纷解决能力。     

No Sheriff in Town: Governance for Online Dispute Resolution

Online dispute resolution (ODR), the practice of resolving disputes via the Internet or digital applications, has been developing since the mid‐1990s. As the field has grown and gained traction, it has increasingly received attention from professional associations and industry leaders in the world of alternative dispute resolution (ADR). More recently, it has begun to receive recognition from sources outside of this field — in both the public and private sectors. As the field develops and individual initiatives become widely adopted, the attention it receives from external sources will undoubtedly focus on questions of quality, ethics, practitioner training, service provider qualifications, and monitoring. These questions — already beginning to be heard from within the field — derive, in essence, from one shared overall question, that of appropriate governance for the ODR field. In this article, we will explain what we mean when we discuss a field's governance and suggest that the field itself should investigate issues of its own governance. We explore and explain the current “low‐to‐no” state of governance in ODR — and the developments that are likely, should the field fail to actively address this issue. We discuss the costs of no governance, and the potential costs and disadvantages of employing a higher‐governance model. We ask whether ODR can, indeed, be governed at all, and illustrate why addressing ODR governance is a very complex venture, in terms of the web of factors to be addressed, no matter how beneficial internal governance may be. We do not, in this article, intend to decide any of these questions — but, rather, to pose them to the ODR field and to the wider fields of ADR and conflict management. We point out why the ODR field is at a developmental point that is highly suitable for discussing and deciding these questions — and why these decisions might have far‐reaching implications for a wide range of conflict‐related fields.     

Deconstructing Mediation: A Case Study of the Cod Wars

In this study, I explore the mediation techniques used by an international organization (IO) to settle an international crisis. Specifically, I have focused on the use of formal and informal techniques with a case study of the North Atlantic Treaty Organization's (NATO) mediation during the Cod Wars between Iceland and the United Kingdom. My analysis indicates that a combination of both formal and informal mediation techniques was instrumental in resolving the Cod Wars conflict. Further research would clarify whether this finding can be generalized to other cases of NATO mediation and interventions of third parties in addition to NATO.