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Is There an EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice 欧盟是否存在版权法理学?欧洲法院运作的实证分析
Pub Date : 2015-08-13 DOI: 10.1111/1468-2230.12166
M. Favale, M. Kretschmer, Paul Torremans
The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches). We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence. The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.
欧洲联盟法院(ECJ)一直被怀疑在司法机构的传统法律解释职能之外执行协调议程。本研究旨在实证调查与欧盟版权法发展有关的两种理论:(i)法院未能发展出连贯的版权判例(缺乏领域专业知识、版权特定推理和可预测性);(ii)法院追求一种积极的、协调的议程(诉诸于对欧洲法律的目的论解释,而不是——不那么自由裁量的——语义和系统的法律方法)。我们收集了两个关于欧洲法院版权和数据库案件的数据集,直到Svensson(2014年2月):(1)关于案件分配给分庭、分庭组成、法官报告员和总检察长的统计数据(包括人员专业背景的编码);(2)使用定性编码技术对决策本身的论证模式进行内容分析。研究(1)和(2)之间的关系,使我们能够确定某些分庭/法院成员与法律方法之间的联系,随着时间的推移,并按主题划分。这些揭示了法院的内部运作,也使我们能够探索有关欧洲法院法学性质的理论。分析表明,法院几乎完全缺乏私法,特别是知识产权法方面的专门知识。然而,我们发现法院已发展出一套机制,透过有系统地将案件分配给某些法官和总检察长,以促进司法学习。我们还发现,法院制定了一个与Malenovský法官(40个版权案件中的24个案件的报告员)相关的“公平平衡”主题,并没有预测到向上协调的议程,大约一半的判决缩小而不是扩大了版权保护的范围。
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引用次数: 38
The Application of the Doctrine of Privity of Contract to Insurance Contract in Nigeria 合同相对性原则在尼日利亚保险合同中的适用
Pub Date : 2015-08-09 DOI: 10.2139/ssrn.2641551
O. Oke
By the nature of Insurance Contracts, the insurer undertakes to indemnify the insured in the event of the happening of unforeseen occurrences. For liability Insurance contracts, the insurer undertakes to indemnify the insured in case of liability to a third party, thus the insurance contract is taken for the benefit of the third party. The critically question then arises, can the third party sue the insurer directly for the liability guaranteed under the contract of insurance? The long established common law doctrine of privity of contract answers this question in the negative, however statutory provisions has modified the applicability of this principle in relation to insurance contracts in Nigeria. The aim of this Article is to examine the statutory provisions that whittled down the effect of the doctrine of privity of contract to insurance contract in Nigeria and the judicial interpretation given by the Courts to these provisions to determine how well there have protected third parties.
根据保险合同的性质,如果发生意外事故,保险人承担赔偿被保险人的责任。责任保险合同是指保险人在被保险人对第三者负有责任时承担赔偿责任的合同,是为第三者利益订立的保险合同。那么关键的问题就出现了,第三方能否就保险合同所保证的责任直接起诉保险人?确立已久的普通法合同相互关系原则否定地回答了这个问题,然而,尼日利亚的法定条款修改了这一原则在保险合同方面的适用性。本文的目的是审查削弱尼日利亚保险合同合同相互关系原则效力的法律条款,以及法院对这些条款的司法解释,以确定对第三方的保护程度。
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引用次数: 0
An Open Letter to the Sponsors of the Revised Defend Trade Secrets Act 致修订《保护商业秘密法》发起人的公开信
Pub Date : 2015-08-03 DOI: 10.2139/SSRN.2699763
David S. Levine, Sharon K. Sandeen
We write to express our continued concerns about the Defend Trade Secrets Act (“DTSA”) and our willingness to assist you in determining how best to improve enforcement of legitimate trade secret rights. Unfortunately, the new DTSA appears to simply combine many of the provisions of the two pieces of legislation that were introduced in 2014 (S. 2267 and H.R. 5233). As a result, it addresses few of the concerns raised in the January 2015 article and the August 2014 letter. Moreover, the sponsors have failed to explain how the DTSA improves existing trade secret law, nor how it will specifically address the harms that it purports to mitigate. Thus, the August 2014 letter and January 2015 article remain highly relevant to an analysis of the DTSA’s benefits and drawbacks.
我们写信是为了表达我们对《保护商业秘密法》(“DTSA”)的持续关注,并愿意协助您确定如何最好地改善合法商业秘密权利的执行。不幸的是,新的DTSA似乎只是简单地结合了2014年引入的两项立法(S. 2267和H.R. 5233)的许多条款。因此,它几乎没有解决2015年1月的文章和2014年8月的信中提出的问题。此外,提案人没有解释DTSA如何改进现有的商业秘密法,也没有解释它将如何具体解决它声称要减轻的危害。因此,2014年8月的信件和2015年1月的文章仍然与DTSA的利弊分析高度相关。
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引用次数: 0
Public Institutions as Defamation Plaintiffs 公共机构作为诽谤原告
Pub Date : 2015-08-01 DOI: 10.2139/SSRN.2651146
Hilary Young
It is reasonably well settled in Canadian common law that governments cannot bring defamation actions against citizens. That said, uncertainty remains about the scope of the rule (i.e, what counts as government for the purposes of the rule) because of a lack of case law, and because cases rely on different rationales, including the chilling effect of defamation actions on democratic discourse, the public nature of a government’s reputation and the fact that governments generally have the ability to speak out to try to correct misinformation about them.This article examines the law in other common law countries and Canada with two goals in mind: first, to understand the current Canadian law with regard to governments’ and other public bodies’ ability to sue in defamation; and second, to ground a normative analysis. Specifically, I assess how the rule against government defamation actions should be applied to public institutions such as school boards, police forces and crown corporations. I propose that like governments, public institutions should be prohibited from suing in defamation. As a starting point, public institutions are institutions subject to access to information requests under federal and provincial law. I justify this admittedly broad prohibition with regard to the nature of public institutions’ interest in reputation, the importance of speech about such institutions, the limitations of defamation defences in protecting speech on matters of public interest, and the ability of public institutions to communicate with citizens to try to correct misinformation.
加拿大习惯法规定,政府不能对公民提起诽谤诉讼。也就是说,由于缺乏判例法,并且由于案件依赖于不同的理由,包括诽谤行为对民主话语的寒蝉效应,政府声誉的公共性质以及政府通常有能力发表言论以纠正有关它们的错误信息这一事实,规则的范围仍然存在不确定性(即,出于规则的目的,什么才算政府)。本文考察了其他普通法国家和加拿大的法律,目的有两个:第一,了解加拿大现行法律关于政府和其他公共机构起诉诽谤的能力;第二,建立规范分析的基础。具体来说,我评估了反对政府诽谤行为的规则应该如何适用于公共机构,如学校董事会、警察部队和国有企业。我建议像政府一样,禁止公共机构起诉诽谤。首先,公共机构是根据联邦和省法律要求获取信息的机构。关于公共机构声誉利益的性质,关于这些机构的言论的重要性,诽谤辩护在保护有关公共利益的言论方面的局限性,以及公共机构与公民沟通以试图纠正错误信息的能力,我为这一公认的广泛禁止辩护。
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引用次数: 0
Liability of Persons of Unsound Mind: Incentives for Choosing Activity Level. An Economic Analysis of the Law 心智不健全者的责任:活动水平选择的动因。法律的经济分析
Pub Date : 2015-07-25 DOI: 10.2139/ssrn.2635869
Enrico Baffi, D. Nardi
The aim of this paper is to demonstrate that liability on the part of a person of unsound mind in respect of an act committed by that person does not alter incentives to act by reason of the fact that when this person commits the unlawful act, he is not in possession of all their faculties. Regulations providing for liability on the part of the person of unsound mind in the choice of the activity level when he is in possession of all the faculties would have the effect of acting as a disincentive to conduct which is inefficiently harmful, as the person, when choosing his level of activity, would take into account the risk of liability in cases where he commits an unlawful act. Liability linked to the choice of level of activity would act as a disincentive to excessive risks of harmful events.The proposal made by some academic researchers whereby indemnification must take into account the age and the severity of the incapacitation would induce people who are not, in a certain moment, of unsound mind to choose their level of activity, taking into account liabilities they may face. A law which links the indemnification that injurer must pay when he is of unsound mind to age and severity of incapacitation acts as a disincentive to the choice of excessively high levels of activity and therefore excessive risks, and favours efficiency.
本文的目的是证明精神不健全的人对其所犯行为的责任并不会改变其行为的动机,因为当该人实施非法行为时,他并不拥有所有的能力。规定精神不健全的人在拥有所有能力的情况下选择活动水平时应负的法律责任的规例,会起到抑制无效有害行为的作用,因为该人在选择其活动水平时,会考虑到他在作出非法行为时承担法律责任的风险。与活动水平选择有关的责任将起到抑制有害事件过度风险的作用。一些学术研究人员提出的补偿必须考虑到丧失行为能力的年龄和严重程度的建议,将促使那些在某一时刻没有精神不健全的人考虑到他们可能面临的责任,选择他们的活动水平。一项将伤害者在精神不健全时必须支付的赔偿与年龄和丧失行为能力的严重程度联系起来的法律,可以抑制选择过高的活动水平,从而避免过度的风险,并有利于提高效率。
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引用次数: 0
Key Considerations in the Drafting of Guarantees and Bonds 起草保函和保函的关键考虑因素
Pub Date : 2015-07-12 DOI: 10.2139/ssrn.2684027
O. Osinubi, Ihenetu-Geoffrey Chibueze Chinedu
The focus of this working paper is the drafting of guarantees. In discussing the topic from the perspective of drafting, we attempt to achieve familiarity with some key issues and risks in drafting guarantees and bonds. We have also set out the law in relation to guarantee including the essentials of contract, types, rights and obligations of guarantors, including several key drafting risks that must be avoided by practitioners.
本工作文件的重点是保函的起草。在从起草的角度讨论这个问题时,我们试图了解在起草保函和债券时的一些关键问题和风险。我们还介绍了与担保有关的法律,包括合同的要点、担保人的类型、权利和义务,以及从业人员必须避免的几个主要起草风险。
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引用次数: 0
From Bailouts to Bogs -- Shaking the Takings Money Tree 从救助到沼泽——动摇收入树
Pub Date : 2015-07-08 DOI: 10.2139/SSRN.2628344
Laura S. Underkuffler
Recently, shareholders of the insurance giant AIG, which received billions of dollars in bailout funds from the federal government at the height of the 2008 financial crisis, filed suit against the United States government for $40 billion. One might think that this claim would be absurd on its face. Commentators – legal and otherwise – appeared to have been caught off guard as to how this could be a plausible legal case. If the government simply offers you a deal, which you can take or leave, how can you sue – later – if you don’t like its terms? This might sound astounding, but it is not. To understand the theory of the AIG litigation, one must go to its deeper, festering root in American takings law. In a series of “exactions” cases, the United States Supreme Court has held that when government offers something (which it has no obligation to offer), in exchange for value of some sort, courts must ensure that this is “fair” – even though the offeree is under no obligation to take it. In short, we should not be surprised by AIG. It is simply Nollan/Dolan’s progeny.
最近,保险巨头美国国际集团(AIG)的股东向美国政府提起诉讼,要求赔偿400亿美元。AIG在2008年金融危机最严重的时候从联邦政府那里获得了数十亿美元的救助资金。有人可能会认为这种说法从表面上看是荒谬的。法律界和其他领域的评论人士似乎都措手不及,不知道这怎么可能是一个合理的法律案件。如果政府简单地向你提供一份协议,你可以接受也可以离开,如果你不喜欢它的条款,以后你怎么能起诉呢?这听起来可能令人震惊,但事实并非如此。要理解AIG诉讼的理论,我们必须深入了解其在美国征收法中根深蒂固的问题。在一系列“征收”案件中,美国最高法院认为,当政府提供某种东西(它没有义务提供)以换取某种价值时,法院必须确保这是“公平的”——即使受要约人没有义务接受它。简而言之,我们不应该对AIG感到惊讶。它只是诺兰/多兰的后代。
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引用次数: 0
Koushal v Naz: Judges Vote to Recriminalise Homosexuality 库沙尔诉纳兹案:法官投票将同性恋重新定罪
Pub Date : 2015-07-01 DOI: 10.1111/1468-2230.12133
Tarunabh Khaitan
In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis.
在Koushal v Naz案中,印度最高法院推翻了高等法院的判决,该判决宣布印度刑法第377条将“违反自然秩序的性交”定为犯罪是违宪的。在这样做的过程中,印度将同性恋和变性人重新定义为罪犯。本案例说明探讨了导致这一判决的一些结构性问题。第一个问题是,印度最高法院正在转变为一个民粹主义的、准立法的机构,将自己视为治理的工具。这给其反多数主义的角色带来了巨大压力。第二个问题与法院案件的庞大规模有关(考虑到其广泛的管辖权和宽松的常设规则),再加上印度法律学院没有能力也不愿意继续要求司法忠于法律。这些因素导致了不合理或不合理判断的正常化,以及凝视决策的崩溃。
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引用次数: 2
Legal Risk Premia During the Euro-Crisis: The Role of Credit and Redenomination Risk 欧元危机中的法律风险溢价:信用和货币重估风险的作用
Pub Date : 2015-06-25 DOI: 10.2139/ssrn.2608852
Jens Nordvig
Using several new datasets, I document the role of legal risk premia in bond yields during the Euro-crisis. I find evidence of a rising premium especially in late 2011 and mid-2012 on bonds with foreign governing law relative to those with local governing law (and otherwise similar characteristics). The results illustrate that legal risk premia spiked at the height of the crisis in the Eurozone, when investors were willing to pay a premium for the additional protection offered by foreign law bonds. I show that this governing law premium can be linked to both credit risk (expected haircuts) and redenomination risk (expected currency depreciation). This paper is the first to empirically link the governing law premium to redenomination risk. I find evidence that redenomination risk is an independent driving force of governing law spreads over and above credit risk, although it is analytically challenging to separate the two risk factors. My findings, while not conclusive, are consistent with the consensus in the literature on contract law, which argues that local law financial instruments should be more susceptible to redenomination in a scenario of a country exiting the Eurozone.
使用几个新的数据集,我记录了欧元危机期间法律风险溢价在债券收益率中的作用。我发现,尤其是在2011年末和2012年年中,适用外国法律的债券相对于适用本地法律(以及其他类似特征)的债券溢价不断上升。结果表明,在欧元区危机最严重的时候,法律风险溢价飙升,当时投资者愿意为外国法律债券提供的额外保护支付溢价。我表明,这种支配法律溢价可以与信用风险(预期的减记)和重新计价风险(预期的货币贬值)联系起来。本文首次从实证角度将管制法溢价与货币重估风险联系起来。我发现有证据表明,货币重新计价风险是凌驾于信用风险之上的法律利差的独立驱动力,尽管在分析上很难将这两个风险因素分开。我的发现虽然不是结论性的,但与合同法文献中的共识是一致的,该文献认为,在一个国家退出欧元区的情况下,当地法律金融工具应该更容易受到重新计价的影响。
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引用次数: 11
The Review of the Economic Legislation in May 2015 2015年5月经济立法回顾
Pub Date : 2015-06-19 DOI: 10.2139/SSRN.2620709
I. Tolmacheva, Julia Grunina
In May, the following amendments were introduced in the legislation: from September 2013 amendments to Cl.4 and Cl.5 of Section I of Part I and Article 1153 of Part III of the Civil Code of the Russian Federation will be in effect; the specifics of carrying out of labor activities by high-skilled experts-foreign nationals was updated; procedure for identification of a foreign national who has no valid document was specified and definition of “the state support of innovation activities” was provided.
5月,立法中引入了以下修正案:自2013年9月起,对俄罗斯联邦民法典第1部分第1节第4条和第5条以及第3部分第1153条的修正案将生效;更新了外籍高技能专家开展劳动活动的具体内容;明确了无有效证件外国人的认定程序,并对“国家支持创新活动”进行了界定。
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引用次数: 0
期刊
Law & Society: Private Law eJournal
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