附带民事诉讼精神损害赔偿问题探究

现行刑事立法在刑事附带民事诉讼中明确将精神损害赔偿排除在外,这一制度的缺失侵犯了刑事被害人的合法权益,在我们看来这是十分不合理的,因此,在附带民事诉讼中迫切的需要构建完善的精神损害赔偿制度。本文围绕精神损害赔偿的司法现状及其制度完善的必要性、可行性展开论述,并在此基础上提出了构建我国精神损害赔偿制度的具体举措。     

旅游合同与旅游者的精神损害赔偿

本通过我国《民法通则》和《合同法》有关条的扩张解释,旅游合同违约、精神损害赔偿制度的设想,以解决旅游合同中旅游的精神损害赔偿问题。     

论违约精神损害赔偿

违约精神损害赔偿符合人性的要求,亦具有法理上的正当性。在协调法律的正义、秩序与效率三种价值冲突、平衡违约方、受害方与社会三方利益矛盾这一原则的指导下,可以选择“一般禁止而例外允许”的模式处理违约精神损害赔偿问题。     

侵犯著作权的精神损害赔偿问题探究

当前国家和各地方政府都在实施知识产权战略,但绝大部分目光都聚集在知识产权对经济的推动上,而对传统三大知识产权之一的著作权的关注却明显不够。其实,著作权侵权行为是很普遍的,其引起的精神损害赔偿问题一直是一个倍受争议的焦点。目前,我国立法上对著作权精神损害赔偿方面尚没有明确的规定,在司法实践中面临着很多尴尬。为克服理论和司法实践当中的这种不足,我们应该重新审视著作权的权利性质,对侵犯著作人身权的侵权行为引起的精神损害予以明确的法律保护。     

论附带民事诉讼中的精神损害赔偿

我国的《刑事诉讼法》对于刑事附带民事诉讼中的精神损害赔偿,没有规定,在现代民主社会,应该是一个法律的漏洞。刑事精神损害赔偿,在各国的立法中有所体现,对我国有一定的借鉴意义。在强调权利本位、人权保障的今天,我国有必要对附带民事诉讼中的精神损害赔偿进行相应的改革和完善,具体包括附带民事诉讼精神损害赔偿原则、范围、程序等各个方面。     

旅游者行程前任意解约行为的若干法律问题探析

旅游者行程前任意解约是违约还是合法行为？旅游经营者因此受到损失应否获得赔偿？本文认为,旅游者任意解除旅游合同不构成违约,但应予以赔偿。结合个案,就法院对当事人约定的行程前解约条款效力的认定,本文建议,我国立法应赋予旅游者任意解除合同权,且约定赔偿优先。     

论侵害胎儿利益的侵权行为

当胎儿利益遭受到侵害之后,利益的保护问题一直为学界所争论,各国对胎儿保护立法也不一样。针对胎儿的侵权行为也有自己的特点,包括侵害客体的间接性,侵权行为发生时间的特定性,确定侵害结果的时间不确定性。此种侵权行为也符合普通侵权行为的构成要件,行为的违法性、行为人的过错、因果关系和确定的损害结果,以及对此种侵权行为提出了损害赔偿的一系列相关问题。如能提起损害赔偿的情况,损害赔偿请求权的主体和范围等。     

刑事诉讼中被害人的保护——以刑事和解为视角

传统的刑事法理论强调国家利益的实现和被告人权利的保护,而犯罪行为的直接受害人的权利却经常被忽视或无法保障。刑事和解,作为一种的新的刑事处理方式,可以有效的保护受害人的权利,使其在精神上、心理上以及物质上得到抚慰和赔偿。如果实践中,能严谨的的适用刑事和解,周全的设计刑事和解的适用条件,刑事和解必然会在自然人的刑事案件中有更大的发挥空间,被害人的权利也会得到更有力的保障,从而,缩小立法规定和司法实践中产生的巨大差距。     

我国旅游合同研究回顾与展望

本文就我国旅游合同研究中的概念内涵、法律性质、当事人的权利义务、旅行社旅游服务给付的履行辅助人的责任、纠纷类型、精神损害赔偿和旅游合同立法等进行回顾,并着重关注旅游合同研究中的热点问题——新版旅游合同范本。在此基础上对我国旅游合同研究做出评价,指出其存在的问题,并就旅游合同研究和立法趋势提出自己的意见。     

论我国《合同法》关于违约金责任的规定

违约金是一种重要的违约责任的实现方式。自《合同法》颁布以来,理论界和司法实践中,围绕着《合同法》第114条关于违约金责任的规定进行了激烈的争论,至今未形成一致的意见。本文认为,我国《合同法》中的约定违约金,既具有惩罚性也具有赔偿性。两种不同性质的违约金与损害赔偿、定金等违约责任的其他承担形式的关系也各自不同。应当承认存在单纯的惩罚性违约金,立法上应当清楚地界定两种性质违约金的区别,以消除理论认识上的矛盾和司法实践中的混乱。     

The legal grading of sexual citizenship: sentencing practices in Norwegian rape cases

This article maps and discusses the legal processing of rape cases in Norwegian appellate courts. Drawing on data from a multivariate regression analysis and a qualitative frame analysis, we examine the significance of space, accuser-convict prior relationship, the social context, accuser-convict marital relationship status, and convict racial background for grading of sentences in rape cases. The data-set consists of 176 rape cases that were processed in 2011 and 2012. Excluding acquittals and controlling for the application of relevant legal provisions, we find that sentences are reduced by 30% if the rape occurs in a private space as opposed to a public space. If the rape occurs at a party or is committed by a perpetrator who is a member of a racial majority, we find that sentences are reduced by 20%. A prior relationship between the victim and the perpetrator reduces sentencing by 18%. Results regarding victims of marital rape are inconclusive. The study concludes that sentencing is stratified according to the public/private divide, prior relationship, social context and race. Despite progress made on behalf of victims of domestic violence and a gradual implementation of stricter sentencing in line with legislative intentions, the legal processing of rape cases is permeated by race and gender discrimination.     

从“三废”利用到污染治理:新中国环保事业的起步

1973年第一次全国环境保护会议是新中国环保事业起步的标志。因环境污染主要是"三废"造成的,故环境保护的重点首先集中于"三废"综合利用,党和政府提出了"三十二字"方针,出台了"三同时"政策。随着对环境保护概念理解的深化,环境保护工作的重点开始从环境污染治理转向环境管理,进而转向自然环境保护。环境治理模式从单纯的行政手段,逐步转变为立法、经济、行政等多种手段并行,而以立法手段为主。把宣传教育同追究行政责任、经济责任直至刑事责任结合起来,成为一条行之有效的经验。治理环境污染经历了从治标到治本、从"三废"利用到环境保护的变化。这种变化,是由于环境逐渐恶化及污染日益严重的状况引起的,因此要求必须对环境保护进行全国性的总体规划,使环保工作计划化、制度化和法律化。     

The Europeanization of Development Planning in Valencia

Europeanization involves the diffusion of European institutions. In Valencia, the system of land development prompted many foreign property owners to appeal to European institutions. The Petitions Committee of the European Parliament took up their case and requested intervention by the European Commission. The European public procurement proceedings provided the strongest foothold for action in Europe and the European Commission instituted infringement proceedings on the selection of private urbanizing agents who are placed in charge of the land readjustment and the servicing and financial arrangements for comprehensive development zones. The European Court of Justice dismissed the action as the Commission did not provide sufficient evidence to show that these relationships were not a service concession, as Spain maintained. This case shows that even in cases that flout European law, it is still European law that decides whether they are exempt and, consequently, that the deliberate construction of practices to keep a case outside the scope of European law may qualify as Europeanization.     

Restorative justice: deliberative democracy in action?

This paper examines the emergence of restorative justice meetings—in which victims come face to face with offenders—and asks whether they provide an example of deliberative democracy in action. The article analyses some restorative justice initiatives from the United States and Australasia and finds that they exhibit inclusiveness, and create more scope for democratic control, but are less strong on the equality criterion. Accountability has also been identified as a weakness of restorative meetings but, drawing on deliberative democratic theory, the authors suggest a possible solution. In their ability to transform preferences of both victims and offenders, restorative meetings offer both a vivid example to deliberative democrats and a powerful challenge to justice systems that rely heavily on incarceration.     

Punishing the mad bomber: questions of moral responsibility in the trials of French anarchist terrorists, 1886-1897

In late nineteenth-century France, several criminologists maintainedthat the perpetrators of the contemporary wave of anarchistterrorism were victims of mental disorders who deserved judicialleniency. French courts did not accept this theory, but insteaddeclared the principal terrorists sane and fully responsiblefor their crimes and, based on this view, handed down severesentences. Many criminologists accused the jurists of deliberatelyignoring the mental illness of the anarchists because of governmentand public pressures to impose the death penalty, but evidencefrom the anarchist trials fails to support this charge. Thecontroversy highlights the conflicts between the judicial establishmentand the emerging discipline of criminology, whose pathologicalexplanations of anarchist terrorism reflected a positivist attackon the traditional concepts of free will and moral responsibility,concepts the jurists viewed as fundamental to the legal system.     

Johann August Philipp Gesner (1738-1801). A review of his essay "The language amnesia" in the bicentennial anniversary of his death

On the 200th anniversary of Johann August Philipp Gesner's death, this paper summarizes and discusses a paper on language amnesia published in 1770. The author had clear knowledge of selective mental impairments resulting from brain diseases, and of separate mental representations for words and their underlying concepts. However, to explain the language impairment, Gesner suggested that it would not be caused by focal damage to a specific anatomic and functional unit of the mind, but is the consequence of a general sluggishness of the mental processes.     

Theodore Roosevelt and the Bureau of Corporation: Executive-Corporate Cooperation and the Advancement of the Regulatory State

Abstract

Theodore Roosevelt's trust policy has been viewed as “progressive” by his contemporaries, dictated by big business by the New Left, and as a precursor to autonomous institutional development most recently. This thesis will instead analyze Roosevelt's actions through a pragmatic lens. Roosevelt's first legislative action in relation to the trusts was to create the Bureau of Corporations. Whilst seemingly ushering in transparency in business affairs through its reporting function, Roosevelt secured executive jurisdiction over publicly circulating its findings, paving the way for private, state-corporate cooperation. Obtaining sensitive information through the promise of discretion, Roosevelt held an implicit leverage over companies, allowing him to threaten to publicize illegalities if they refused to abandon them. The Bureau became a forum for closed-door agreements which achieved tangible amelioration of practice, whilst minimizing the damage entailed by a public airing of corporate America's dirty laundry. I will analyze several Bureau investigations and illustrate the learning curve by which Roosevelt and big business came to an agreement over the parameters of cooperation. Mired by mixed signals from both sides during its early investigations, the emergence of dialectical negotiations over corporate practice and the extent of government-induced public scrutiny came to embody a fledgling cooperative process. These investigations illustrate the pragmatic means by which Roosevelt pursued a conservative, yet effective, reigning in of big business power.     

Johann August Philipp Gesner (1738–1801). A Review of His Essay “The Language Amnesia” in The Bicentennial Anniversary of His Death

On the 200th anniversary of Johann August Philipp Gesner's death, this paper summarizes and discusses a paper on language amnesia published in 1770. The author had clear knowledge of selective mental impairments resulting from brain diseases, and of separate mental representations for words and their underlying concepts. However, to explain the language impairment, Gesner suggested that it would not be caused by focal damage to a specific anatomic and functional unit of the mind, but is the consequence of a general sluggishness of the mental processes.     

Where to draw the line: the difference between a fan and a pirate in Japan

ABSTRACT

This article examines the gap between the public discourse favoured by right holders and politicians for strict copyright enforcement and industry practice where infringement is tolerated and sometimes even facilitated by the same right holders. Drawing on the Japanese contents sector surrounding Manga, Anime and video games, the interaction between strict copyright provisions, positive and negative market impact and broader considerations such as reputation and pay-offs are contextualised. It is demonstrated that right holders do not see infringing behaviour as such as a cause of action nor does it dominate how right holders want users to interact with their products. Instead, it is the wider context which determines if copyright will be enforced or not. Based on an analysis of copyright law, stakeholder interviews and observations at industry and stakeholder events, this paper clarifies where right holders draw the line between a pirate and a fan, especially the limited influence copyright law has in practice.     

‘Burning bings’: a study of pollution management in mid-twentieth century Britain

The paper consciously ranges beyond the major legislative ‘milestones’ of increasing environmental concern to focus on the circumstances in which the Public Health (Coal Mine Refuse) Bills of 1939 were promoted and enacted, as an illustration of the range of strategies deployed by central and local government, and trade associations, in allaying criticisms of the effects of atmospheric pollution. ‘Bing’ is a Nordic word meaning heap, often used to describe the spoil left by mineral working. There was increasing protest in the 1930s as to the damage caused to public health and amenity by the spontaneous combustion of such colliery wastes. The knowledge and understanding gained by the ‘expert’ Alkali Inspectorate in extinguishing and preventing such fires enabled ministers to claim an ‘administrative’ response would suffice, namely of working with industry in curbing such pollution. Members of Parliament and local authorities, exploiting such local instances as the ‘burning bing’ of the Cardowan Colliery, pressed for legislation. It required an exogenous factor, namely the civil-defence precautions taken against enemy bombers, to force industrial interests to concede, at least temporarily, the feasibility of more comprehensive action in suppressing and preventing such fires. Post-war technological advances enabled such concession to become permanent. Beyond the immediate improvement to the physical environment, such mid-century experience caused an increasing array of interests to engage with issues that came closely to be associated with ‘an environmental revolution’ around 1970.