关于定金担保的几个问题

定金作为合同担保的一种方式,经常被加以运用,但由于现行法律这方面的规定较为简单,在实践中易产生理解上的分歧而导致诉讼。文章认为,关于定金担保的标的物,除金钱以外可以扩大至价值具有可度量性的有体物;关于定金合同的成立必须以主合同的成立为前提,主合同不成立,定金合同亦不能成立;关于违约金或定金罚则的选择,应根据合同的约定、违约形态、违约发生阶段或者当事人损失的大小等来加以选择;关于定金罚则的适用,则必须以定金合同的有效为前提,而定金合同的无效,又存在全部无效和部分无效等情形。     

Copyright Damages and Statistics

This paper discusses the statistical issues that arise in conducting an economic damages analysis in the context of a litigation matter involving copyrights. Calculating damages in copyright cases turns out to be a natural application for econometric modelling methods. Surprisingly, elementary statistical issues can be a source of significant debate between the experts in such matters. In this paper, we present a case study and illustrate how issues such as interpretation of p -values and what "rejection of the null hypothesis" really "means" in such matters.     

论新闻侵权中的精神损害赔偿

新闻侵权是在新闻传播的过程中发生的侵权行为 ,其主体为新闻机构 ,侵害的对象为他人的合法利益。新闻侵权发生后 ,新闻机构应当承担民事责任 ,既包括非财产责任 ,又包括财产责任。如果受害人要求精神损害赔偿的 ,人民法院可根据侵权人的过错程度、侵权行为的具体情节等情况具体酌定。在某些情况下 ,新闻机构可根据宪法规定的言论、出版自由和批评建议权主张免除或减轻其民事责任。     

Quantitative micro-scale flood risk assessment in a section of the Trotuș River,Romania

This paper focuses on the estimation of direct damages caused by three flood scenarios with different return periods in the section Făgetul de Sus – Ghimeş – Palanca Pass of Trotuș River, with the aim of highlighting the need of improved land use plans. The damage for three land use classes (residential building, infrastructure and agriculture) were estimated using the damage curves developed by the European Joint Research Centre (JRC) as well as site specific maximum damage values. The data were processed with the help of the ArcMap 10.2 software and FloodRisk tool from QGIS software. Furthermore, the flood risk was assessed using the damage – probability curves, which associates the damage with the corresponding frequency of occurrence. This method was identified and adapted to the characteristics of the study area in order to develop a methodology of flood risk assessment that is answering the question: does the lack of land use plans increase the vulnerability and the flood damage? The results showed that the greatest damages are registered for the residential building land use class for a flood probability of 0.001. In this case the damages reach up to 60% on the scale range of deterioration factor, the total damage value being 2 million euros. For the same hazard probability the total registered damage value for roads is 7500 euro, for railways is around 12,000 euro, while for agriculture is around 84,000 euro. These results highlight the need of protection measures and land use plans development and implementation. Regarding the protection measures we consider that the egalitarianism would be the concept that should be applied in the study area and also an improved cooperation between government, specialized agencies and local authorities at local level would lead to a more efficient flood risk management process. The proposed methodology can be applied for micro-scale analysis, providing quantitative results regarding the flood damage and flood risk assessment. It includes a detailed vulnerability analysis of the elements-at-risk with the aim of developing a more comprehensive approach of flood risk assessment.     

Optimal combination of innovation and environmental policies under technology licensing

Under what conditions will a carbon tax encourage environmental innovation? Can a regulator design an optimal environmental policy to reduce emissions and to promote clean technologies? This paper studies optimal environmental policy in the situation where a monopoly innovator develops and licenses clean production technologies to downstream polluting firms. We find that (i) a higher emission tax will encourage innovation when the burden of the tax payment in the polluters' costs and/or the price-elasticity of the demand for polluting goods are small, (ii) the innovation-inducing effects of emission tax are inversely related to the emission-reduction (Pigouvian) effects of the tax, and (iii) the social optimum can be achieved by the mix of tax and subsidy. We also show that if the policy instrument is limited to the tax, the second-best tax rate would lie between the marginal damage and the first-best rate. By performing numerical simulations, we also demonstrate that the optimal mix of the emission tax and R&D subsidy can have “double dividend” benefits.     

中美产品责任惩罚性赔偿制度构成要件的比较

我国《侵权责任法》首次规定产品责任惩罚性赔偿,但存在主观要件过严、举证难、赔偿责任及数额不具体等问题。应借鉴美国相关法律,予以完善。     

浅析中非BIT全面保护和安全条款之适用

目前,有关非洲国家因战乱和暴力活动造成中国投资者人身和资产损害的情况不时发生。对此,因在实证研究的基础上,充分发挥中非BIT全面保护和安全条款在保护投资者免受人身损害,以及保护投资者法律权益两方面的积极作用。     

由个案谈损害赔偿的责任主体分析

法律关系不同,赔偿责任主体、责任范围也将不同。对蕴涵着复杂法律关系的损害赔偿案件,只有全面、系统剖析各种法律关系,才能准确地把握责任主体和责任范围,正确地做出法律适用选择,公正、合理地处理案件。     

违约损害赔偿制度的比较法研究

英关普通法和大陆民法法系在违约救济措施上存在较大的差异。英美法院选择判决损害赔偿，充分发挥金钱的弥补作用；而大陆法系国家更多地是判令违约方实际履行。在司法实践中对违约损害赔偿的归类上，英美法系和大陆法系采纳的标准不同，但基本上可以划分为实际损害和期待利益的丧失两类。在对违约损害赔偿的目的、违约损害赔偿适用的限制上，两大法系在立法及司法上表现出极大的趋同倾向。     

Lysine and Price Fixing: How Long? How Severe?

In October 1996 the Archer Daniels Midland Company(ADM) pleaded guilty to criminal price fixing withrespect to sales of lysine and agreed to pay a $70million fine. Earlier, in August 1996 two Japaneseproducers and a Korean producer of lysine had agreedto plead guilty to criminal price fixing charges. Andearlier still, in July 1996 ADM and the two Japanesecompanies settled the civil suits filed by some harmedbuyers by agreeing to pay a sum of $45 million.It is this last event that serves as the focus forthis paper. The adequacy of the settlement amount wasa major area of dispute. Connor (1996, 1997, 1998)has claimed that the trebled damages to lysinepurchasers were an order of magnitude larger. Crucialto Connor's conclusions are his assumptions as to thetime period during which the conspiracy had an effecton prices and the but for price that otherwise wouldhave prevailed in the absence of the conspiracy. Thispaper will argue that Connor substantiallyover-estimated the period of the conspiracy andunder-estimated the but-for price.