THE LEGAL CHALLENGE OF INTEGRATED MARKETING COMMUNICATION (IMC): Integrating Commercial and Political Speech

The application of First Amendment commercial speech doctrine to integrated marketing communication (IMC) demonstrates that the integration of public relations messages with advertising and marketing messages may dilute the constitutional protection afforded corporate speech. This analysis of U.S. Supreme Court precedents shows that by intermingling political expression with commercial expression, a corporation may expand the range of communication that may be defined and regulated as commercial speech. The additional review of a California Supreme Court case that redefined commercial speech to include public relations messages illustrates the potential for heightened regulation of integrated marketing communication.     

宪法第一修正案保护下的美国信用评级机构 ——以司法判例为视角

传统上,美国信用评级机构主张评级报告属于涉及公共利益的意见,援引宪法第一修正案进行抗辩,实际恶意标准是最重要的保护手段。《2010年华尔街改革和消费者保护法》等法律法规的出台反映美国加强评级业监管的理念。虽然美国各级法院做法存在差异,但是现在普遍认为判断信用评级机构能否免责应基于自身在构建商事交易中的作用。作为商业言论的评级报告不一定能适用实际恶意标准,但是可以获得宪法第一修正案对于言论自由的其他保护。美国经验对中国信用评级机构法律责任的构建和司法审判具有借鉴意义。     

Government quality determinants of ICT adoption in sub-Saharan Africa

This study investigates government quality determinants of ICT adoption using Generalised Method of Moments on a panel of 49 sub-Saharan African (SSA) countries for the period 2000-2012. ICT is measured with mobile phone penetration, internet penetration and telephone penetration rates while all governance dimensions from the World Bank Governance Indicators are considered, namely: political governance (consisting of political stability and “voice & accountability”); economic governance (entailing government effectiveness and regulation quality) and institutional governance (encompassing the rule of law and corruption-control). The following findings are established. First, political stability and the rule of law have positive short-run and negative long-term effects on mobile phone penetration. Second, the rule of law has a positive (negative) short-run (long-term) effect on internet penetration. Third, government effectiveness and corruption-control have positive short-run and long-term effects on telephone penetration. Institutional governance appears to be most significant in determining ICT adoption in SSA.     

Taking the right of freedom of commerical communication seriously

Recent Supreme Court decisions have established second tier protection for commercial speech under the First Amendment by according it some, but not all, of the protections accorded ideological speech. The Court's arguments closely parallel John Staurt Mill's utilitarian arguments about liberty, liberty-limiting principles and trade in his classic essay,On Liberty, and hence are subject to the same defects as any utilitarian analysis and justification of a right. Recent philosophical apologies for the Court's bifurcated approach to free speech are unpersuasive. Commercial speech protects fundamental interests. There are important connections between freedom of commercial speech and political and personal autonomy. It is possible to extend full protection to commercial speech, while simultaneously minimizing its potential for abuse. Such considerations provide compelling arguments for taking the right to freedom of commercial communication seriously by according it full First Amendment protection and by restricting it only when competing and over-riding rights claims, or weightier considerations of justice, can be adduced.Vaughana Macy Feary is a former Professor of Philosophy at Southern University in New Orleans and now teaches Business Ethics at Fairleigh Dickinson University (Madison Campus). She is the author of articles in this field which includeFreedom of Corporation Communication andCorporation Communication and Privacy Rights.     

The development of consumer protection in Saudi Arabia

The development of consumer protection in Saudi Arabia is of interest for a number of reasons. First, Saudi Arabia presents a unique combination of size, stage of development of the economy and wealth, coupled with strictness of Islamic observance. Second, consumer protection in the Saudi context has received very little attention from researchers. Despite the richness of Islamic teachings on the conduct of business and trade, very little has been written on consumer protection in Islamic societies other than discussions of financial markets and consumer credit and monopoly. This article briefly explores the background to the emergence of consumer protection in Saudi Arabia. Consumer credit and financial markets are excluded from the discussion. Islamic (Shari’ah) law is analysed as a basis for the regulation of consumer affairs; this system of law is then compared in its major outcomes for consumers with legal systems in advanced Western economies. The development of secular commercial law during recent times in Saudi Arabia is also considered as a parallel development to those in Shari’ah. Both strands of development are then set in the context of Saudi Arabia's 5‐year development plans and the changing position of consumer policy issues is tracked through successive plans. The institutional location of consumer policy within the Saudi government system is discussed before finally considering the changing nature of the Saudi consumer and the possible future for consumer protection in the country.     

The right to be read: Newspapers vs. advertisers

Prospective advertisers occasionally cannot obtain space for their messages in newspapers. In a recent case, for example, the Amalgamated Clothing Workers challenged the four Chicago daily newspapers. These “refusal to deal” cases involve three major points. First, the First Amendment protects the disseminator of messages but does not assure that messages will ever be distributed. Second, the newspaper industry is essentially one of local monopolies with a few scattered local oligopolies; future rivalry is unlikely. And, third, the courts generally have been sympathetic to the publisher who refuses an advertisement, but the broadcast media are under greater legal obligation to present both sides of controversial issues.     

比例原则对行政强制执行权的规制

比例原则是许多国家行政法上的一项重要的基本原则,其基本内涵是指行政权力的行使除有法律依据外,行政主体还必须选择对人民侵害最小的方式为之。由于缺乏法律的规制,行政强制执行成为目前我国行政权力中最活跃、最容易被滥用的一部分权力。本文拟在对比例原则涵义进行界定的基础上,分析比例原则对行政强制权规制的有效性,探求比例原则对行政强制执行权有效规范、制约的路径。     

The New German Sales Law: Changing Patterns in the Regulation of Product Quality

Directive 99/44/EC has led to a fundamental revision of the German Civil Code, the BGB. The Act on the Modernisation of the Law of Obligations, which is now in force, pursues a threefold objective: modernisation, Europeanisation, and integration. Modernisation means making German civil law fit for competition with the best civil systems. Europeanisation means transforming three directives on default, consumer sales, and e-commerce into German civil law. Integration means absorbing consumer legislation into the Civil Code.This paper focuses on sales law. The author argues that it enshrines a new concept of contract law. Its basic elements are made clear when examined on the basis of a historical analysis of the factors that have determined the development of the product quality regulation in the last century: contract law, technical standardisation, and competition law. All three are no longer in the hands of the Member States alone. Europeanisation is at the heart of the matter. Europeanisation has led to major changes in technical standardisation, in competition law, and now in contract law. This newly emerging concept might be termed "competitive contract law," as it develops under the influence of both EC contract and EC competition law. The German legislator has gone a long way in changing the regulatory patterns in sales law. Whether it will be politically and legally accepted remains to be seen.     

我国保险公司偿付能力监管与法规协调

近几年来,虽然我国偿付能力监管法规体系不断完善,但是依然存在偿付能力监管法规的协调性以及法规与实际操作的协调性问题,这就造成了监管实践中法律适用困惑以及监管执行不力的现象。因此,如何解决监管法规之间的协调性,以维护保险监管的权威性和有效性是一个值得探讨的问题。     

Freedom and Protection in Contemporary Contract Law

How should contemporary contract law be characterized? Freedom or protection? Ewoud Hondius has made a plea for increased protection of the weaker party in contract law. In this contribution some critical remarks are made. It is argued that freedom of contract should be put back on the agenda. This accords with the new belief in the blessings of the free market and the awareness that protection is not always effective and may sometimes even generate adverse effects. The application of competition law and the regulation of information should have a higher priority than mandatory substantive contract law.     

适用刑法修正案（七）对抑制经济领域犯罪的思考

第十一届全国人大常委会第七次会议表决通过的刑法修正案(七),是遏制当前比较猖狂的职务犯罪和金融证券业等经济领域犯罪的有力武器.规范市场经济秩序,针对金融市场秩序和惩处腐败的职务犯罪是刑法修订的重点.更为重要的是在当今刑罚量刑轻刑化的趋势下,对于经济犯罪和职务犯罪这两类犯罪,在修正案里却体现出了刑罚趋重的特点.     

Product Quality and the Criminal Law

When considering product quality, focus on the civil law as the means of obtaining consumer redress should not blind one to appreciation that the criminal law also has a useful role to play. Even in circumstances in which physical harm to the consumer has not occurred, economic detriment can be sufficient for the quality of a product to be questioned in the context of not only civil but also criminal proceedings. This article uses the example of English law to explore the rationales for regulation of product quality backed by criminal sanctions, and shows how there may be overlaps but also divergences in the scope of coverage of civil and criminal laws.     

Has the Byrd Amendment Affected US Imports?

The Continued Dumping and Subsidy Offset Act (CDSOA), also known as the Byrd Amendment, allows the US government to distribute revenues from antidumping duties to domestic firms alleging harm. Prior to the amendment these revenues were not distributed to firms. In this article, we formally test the hypothesis that the Byrd Amendment effectively provides double protection to US firms to the extent that it further restricts US imports, as argued by the EU and 11 other US trading partners. Using a rich panel of 362 US manufacturing industries for the period 1998 to 2003, we find that whether or not the Byrd Amendment restricted US imports depends crucially on the level of competitiveness in the import‐competing industry. Specifically, we find that the Byrd Amendment served to restrict imports only in industries where competition is relatively weak, while the amendment is associated with an increase in imports in more competitive industries.     

Can cigarette advertising be prohibited? Advertising and the First Amendment to the United States Constitution

Smoking has been considered a health problem virtually since its introduction to Europe in the 1500's. At various times, laws were enacted to attempt to control smoking, while cultivation of tobacco became economically more and more important. The development of widespread recognition of the health consequences of smoking has led to numerous suggestions that cigarette advertising be banned. However, the First Amendment to the U.S. Constitution protects freedom of the press. Analysis of the legal issues involved in such a ban requires consideration of the entire trend of Supreme Court decisions in the area of commercial speech. While it is not possible at this time to predict exactly how the Court would rule in this area, a comprehensive regulatory effort to reduce tobacco consumption could probably include a ban on tobacco advertising.     

金融创新与金融监管的动态博弈——兼论对我国金融监管的启示

金融创新作为客观发展规律对金融监管的影响是决定性的,金融监管在某个时段可能会影响金融创新,但它最终要适应金融创新的需要。本文应用博弈论分析方法论证金融创新与金融监管的动态博弈关系,并借鉴美国金融创新和金融监管动态博弈的例证,探讨在金融全球化和金融自由化的浪潮下,我国金融监管当局如何适应新形势的需要,转变监管理念,运用现代信息技术,完善监管体系,防范金融风险。     

An Alternative to the Impasse

Abstract

The volume of violence portrayed in American mass media has caused concern for decades, but media self-interests, weak governmental policies, and the First Amendment protection for freedom of expression have stymied efforts to improve media content. Grassroots endeavors to alert parents to possible negative effects may be a more effective approach. “Pulling the Plug on Media Violence,” a campaign aimed at escalating consumer awareness, has been implemented by a volunteer group in North Carolina. This study, using the results of a statewide poll, evaluates the campaign's effectiveness and provides useful findings for future efforts devoted to similar issues. The survey shows that although awareness of the campaign was high, the level of concern about media effects was not influenced directly. Religiosity, gender and parenthood were found to be the most important factors linked to higher levels of concern about media violence. Future efforts to mobilize an anti-violence effort may want to target messages to parents (especially mothers) and work with churches in order to increase active involvement.     

The CE-mark and the new European approach to product law: a system of fundamental legal safety requirements and technical specification standards

European product law consists of three parts: product liability law, a general product safety regulation and an increasing number of provisions with requirements on product group level. In recent years this third part has been revised in order to speed up the completion of the European single market. This article describes the development from the negative integration of member states’ markets to the positive integration by supranational law. The CE-mark is the symbol of the new approach to the harmonization of European product safety requirements. The modular system of conformity assessment is an important characteristic of harmonization-based product law. Advantages and disadvantages of the new European product law are discussed from the perspective of ensuring the future of the consumers’ basic right to safety in an increasingly global and therefore international market.     

Product design and tort law: Safety implications of increasing similarity in civil liability and regulatory standards

This article addresses the impact of changes in design defect tort law on safety in the European Union and the United States, and draws two conclusions bearing significant product safety implications. First, tort law’s approach to design defectiveness is developing more cohesion. Although important differences in jurisdictional approaches remain, the differences appear to be diminishing rather than growing. In both the United States and the European Union, courts are increasingly relying upon a risk/utility balancing test to determine whether to impose civil liability for allegedly defective product designs. Second, the direction in which tort law is evolving is bringing it closer to defectiveness tests typically employed by government regulatory agencies in Europe and the United States. Civil liability standards are increasingly similar to regulatory standards used in determining whether a product should be allowed on the market at all. This trend toward greater cohesion in tort standards, and tort law’s increasing similarity to regulatory standards, has both positive and negative implications for safety. On the whole, the trend is likely desirable – it should encourage efficient products that are closer to an optional blend of safety and utility.     

International Regulation on Health,Safety, and the Environment – Trends and Challenges

The international regulation of health, safety, and the environment has come far. Spurred by the United States, the United Nations established in the 1980's a tight net of rules that define minimum standards for the production and marketing of hazardous goods. The rules are for the most part non-binding. The successful conclusion of the GATT Uruguay Round now makes it imperative to balance the rules of international product safety law against the liberties demanded by international free trade. This challenge offers new perspectives for the development of international product safety law.     

WTO体制对我国物流法律制度发展的影响

文章对WTO有关物流法律制度的规定从货物贸易法律制度、物流组织法律制度、物流行为法律制度、物流经济调控法律制度四个方面进行了分析,结合我国入世议定书及我国物流法律制度对WTO相关规定的吸收、采纳,对我国现行物流法律制度在WTO体制下的不相符之处进行了总结．提出了完善的建议,全面讨论了WTO体制对我国物流法律制度发展的影响。