著作权内在利益平衡机制与反垄断法的介入——美国录音制品数字表演权制度的启示

反垄断与保护知识产权均仅是实现其共同目标的手段,其本身并非最终制度目的。就著作权法律制度而言,这体现在其应当建立完善的内在利益平衡机制,从"护权——限权"两个角度对著作权既加以保护、又防止其滥用。在这方面,美国的DPRSR制度堪称典范,我国与之对应的信息网络传播权制度却有待完善。著作权内在利益平衡机制一旦失灵,根据其失灵的情形,可能产生不同的损害。其中对于可能产生竞争损害的,在必要条件下,反垄执法机构应当及时介入,保护市场竞争和消费者利益不受著作权滥用行为的损害,保障反垄断和保护知识产权共同目标的实现。     

Witnessing an Accidental Shooting at the Police Training Academy

Abstract

After an accidental shooting at a police training academy, outcomes of the class involved (n = 45) were compared with those of several comparison classes (n = 154) immediately and one year later. Results revealed a modest impact, but an increase in PTSD symptomology was observed from academy training to the one-year follow-up. Recruits in the affected class demonstrated more prejudicial attitudes toward women in law enforcement, perhaps because the shooter was a woman. The findings suggest that mistakes made by women within law enforcement may be generalized as stereotypes, and that further research is needed on the psychological impact of becoming a police officer.     

刍议医疗损害技术鉴定二元化现状的应因之道

《侵权责任法》颁布实施已经2年多,国家立法机关及最高人民法院迟迟没有出台关于医疗损害技术鉴定的法律解释。一些省、直辖市出台了地方性规定,但做法各不相同,理论上并没有彻底解决鉴定二元化的问题。目前部分地区医疗损害司法鉴定似乎出现一种无序状态,严重影响了医疗损害争议案件的解决,急需尽快完善顶层设计,规范鉴定机制,尽快结束鉴定的二元化局面,为医疗损害争议案件诉讼的解决提供保障。     

The changing political economy of Taiwan‐Southeast Asia relations

This paper examines the possibility that the United States could ‘capture’ the Asia‐Pacific Economic Cooperation (APEC) forum and use it to impose America's economic agenda on the region. It discusses Washington's ability to shape the choices of APEC's East Asian members at APEC negotiations to reflect US interests through employing its military, economic, cultural, and ideological resources as instruments of leverage and influence. While interdependence constrains Washington's use of military and/or economic leverage to influence the choices of APEC's East Asian members, the complex bargaining and consensual decision‐making features of APEC further prevent Washington from imposing its agenda on APEC. On the other hand, Washington's capture of APEC could be facilitated if East Asian policy‐making elites were socialized through the APEC process to accept American norms. This would tend to lead to preference convergence since the values of both the US and East Asia would coincide. The analysis suggests, however, that American norms are unlikely to prevail within APEC in the near to medium term primarily because APEC's East Asian members consider East Asian norms to be superior. American culture and especially ideology are not sufficiently attractive to East Asian elites and are thus unable to be used as instruments of influence. For these reasons, the paper concludes that the United States will find it difficult to impose its economic agenda on the region through APEC.     

“醉酒型”危险驾驶罪的量刑标准——以司法理性与审判效率的契合为视角

鉴于＂醉酒型＂危险驾驶罪在《刑法修正案（八）》施行一年之际暴露出的诸多困境,司法实践应从出罪途径和量刑标准两个方面来破解定罪界限与量刑失衡现状：通过反证抽象危险的不存在及适用总则第13条来构建合理的出罪路径,以期坚守司法理性和刑法的谦抑性;通过量刑规范化来统一量刑标准和程序参与,确定从量刑起点直至宣告刑中各个环节的标准和影响幅度。从而＂以看得见的形式＂实现量刑的规范和公正,最大限度地实现司法的公正、效率和社会认可。     

China’s international socialization of Caribbean state-society complexes: Trinidad and Tobago as a case study

ABSTRACT

Using the case study of Trinidad and Tobago, this article analyzes the process of reciprocal international socialization that allows Beijing to construct a cognitive and normative space conducive to a new regional order in the Caribbean which should be politically friendly, economically profitable, and socially open to its government, companies, and citizens. We argue that there has been a shift in the identity of Trinidad’s state-society complex due to the influence of China’s very visible political, economic, and social conditionalities. Their impact on political elites (which is reflected in government discourse and actions) and on the society at large (as shown by interviews with 30 Trinidadian nationals) is analyzed in order to show that Type I, ‘role playing’ socialization has been reached. However, frustration within Trinidad’s society with the domestic effects of China’s economic and social conditionalities clearly limits the potential for the evolution toward the more advanced Type II socialization exemplified, in the same region, by the Soviet-Cuban relationship. This suggests that, at least in the near future, key features of the Chinese approach incompatible with its self-proclaimed win-win nature will prevent Beijing from upgrading its status to that of a decisive socializer in the Caribbean.     

When Private Talk Becomes Public Political Expression: Examining a Practice-Field Hypothesis of Youth Political Development

Previous research indicates the importance of interpersonal communication in the political socialization process. Investigations of political talk have mostly been restricted to frequency, and the theorizing of its effects centered on cognitive outcomes such as knowledge and ideological identification. This study examined the part played by private political talk in promoting expressive forms of political participation among adolescents. Recent survey panel data from Swedish 13–18-year-olds were analyzed. Results showed that frequency of private political talk predicted the extent of public political expression even when self-selection and previous levels of political expression were accounted for. Data offered some support for an expected interaction of private political talk and political interest in predicting public expression. The overall findings are consistent with the theoretical idea that political talk offers adolescents opportunities to enact participation in safe settings, and that this is a mechanism that can explain why talking about politics is favorable for political development during adolescence.     

Distinguishing Between Damage to Clothing as a Result of Normal Wear and Tear or as a Result of Deliberate Damage: A Sexual Assault Case Study

Abstract:  This paper focuses on bra damage, specifically damage observed in hook and eye fasteners that are generally located at the backstraps of bras. We describe bra design including the method by which hook and eye fasteners are generally constructed. We assess bra damage in two situations where the damage observed was unexpected given the case scenarios. These were: (i) the complainant of an alleged rape attributed damage to her bra hooks to force during a struggle and (ii) the complainant had earlier manipulated her bra hooks in an incident not related to her complaint. Steriomicroscopy and reconstruction experimentation were necessarily used to assess the bra damage. A systematic approach to damage analysis was employed by the forensic practitioners to correctly identify damage as being a result of mechanical manipulation and therefore as falsified. This paper suggests that more examples of falsified damage should be documented.     

不同侵权责任承担方式的构成要件

传统民法的侵权责任的一般构成要件是仅针对侵权损害赔偿责任来构建的,而我国现行民法的侵权责任的承担方式并不限于损害赔偿,侵权责任保护客体并不仅限于绝对权,因此,针对不同的侵权责任承担方式其归责原则与损害是否发生等构成要件应不相同;基于同一种侵权责任承担方式如果侵权责任保护对象不同,侵权责任的构成要件也不相同.重新认识侵权责任的构成要件无疑对民法规则的设计和适用将产生实际的意义和价值.     

国家法难行之源：国家主义抑或人本主义——从“依法收贷案”切入

以前有关“依法收贷案”的研究文章都认为这里的“法”就是“现行国家法”,但对此案细致分析发现并非如此,而是“王法”即中国传统法。中国国家法自古至今有一种严重的国家主义倾向（而今表现为一种现代化倾向）,缺乏一种现代法律所需要的人本主义精神因素,因此,国家法只得到了国家外部力量的推动,缺乏内部力量的驱动,其社会化动力不足。其社会化程度远低于中国传统的“法”与“德”,最终被“王法”置换,为中国传统的“德”所打败。