恐怖犯罪是我国当前社会的新疾患.我国《刑法》第一百二十条第二款规定,犯组织、领导、参加恐怖组织罪并实施杀人、爆炸、绑架"等犯罪"的,按数罪并罚的规定处罚,其中"等犯罪"的具体范围并不明确.多数学说倾向于对组织、领导、参加恐怖组织后实施的一切犯罪都实行并罚,但这种做法可能形成重复评价,还可能造成不协调的结果.少数学说主张以行为人在恐怖组织中发挥的作用或者后续犯罪是否属于恐怖犯罪作为区分并罚与否的标准,但在某些场合无法得出妥当的结论.应根据前后犯罪的法益关系以及行为数量决定是否实行并罚.法益侵害不超过抽象的公共危险的后续犯罪,以及与组织、领导、参加恐怖组织的行为重合的后续犯罪,不属于应当并罚的"等犯罪".
The economic crime involving mass participation is a kind of crime that has attracted much attention in China recently, which has the characteristics of the legality of the nature of the crime, the nature of the case factors,and has a great impact on social stability. Moreover, in the process of prosecution, we will also encounter difficulties in how to accurately grasp the timing of filing the case, reasonably determine the scope of the accused, scientifically divide the jurisdiction of the case-handling organs, completely collect, review and identify the evidence involved in the case, and fully protect the relevant rights of the parties involved. Therefore, it is necessary to innovate the case-handling mechanism for prosecuting this kind of crime in the aspects of strengthening communication and cooperation with special economic administrative organs, establishing case-by-case handling system, adjusting case-handling requirements, and increasing the application of modern scientific and technological means.
《民事诉讼法》对于诉讼和解仅有原则性规定,制度性的规定大都被遮蔽在调解制度之中,有必要从调解制度中分离出诉讼和解制度.诉讼和解与实体法和解相对,而诉讼和解又可以分为法庭上和解与法庭外和解.在形式上,诉讼和解不需要法院依据和解内容做成调解书,如果是当事人在法庭上达成的和解协议,法院记录在案即可.执行和解合同制度包含了终止程序的内容与实体法和解协议内容,应采分离说,分别处理二者的效力.在实体法上,和解协议改变了实体法的法律状况;在程序法上,诉讼和解具有终结诉讼的效力,相应地也排除了诉讼系属,诉讼和解可以作为强制执行的依据,但没有既判力.在诉讼和解无效、被撤销乃至被解除的情况下,原则上应恢复到原有程序,由原审法院继续进行诉讼和解无效等确认程序.
The supervision of BigTech finance has not yet separated from the macro prudential,micro prudential,and behavioral regulatory framework,and the highly anticipated financial mixed industry supervision has not solved the problem of power allocation and platform monopoly containment in big technology finance supervision.Although resorting to regulatory technology,it is also difficult to address the challenges of non-linear systemic risks and data ethics.Starting from the new governance theory model and taking into account the unique nature of BigTech financial regulation,this paper aims to improve the power allocation of financial mixed industry regulation by enhancing the governance participation of other entities outside of the government,promoting the decentralization of regulatory power and outward delegation of power,and promoting the orderly flow of public and private governance resources to overcome the gap of data ethics regulation,It is the optimization direction of BigTech financial governance that enhances the performance of digital financial governance.
The configuration of medical data usage rights is the key to activating the role of medical data elements.The use of medical data is regulated by law,but one-sided emphasis on behavioral regulation cannot meet the actual needs of incentives for medical data circulation.The configuration of medical data usage rights needs to be completed.In the specific rights allocation process,decentralized and multi-point source data rights allocation methods are not conducive to the public interest protection of medical data,and centralized allocation methods should be adopted to complete the private law empowerment of medical data with medical institutions as the core.Medical institutions enjoy the statutory right to use medical data,and may authorize commercial entities to transmit medical data within a specific scope to management bodies.In principle,the intended authorization of medical institutions to commercial entities is limited to non-personal data,and must comply with the requirements limited by the licensing method.The management agency collecting and using medical data needs to explain the reasons,ensure efficiency,and compensate in a timely manner.In an emergency,the management agency has the right to access and use medical data controlled by medical institutions for public welfare purposes;Under normal circumstances,the collection of medical data by the management agency needs to be reviewed and authorized by the health authorities.The realization of the right to use medical data is premised on the performance of layered obligations,which specifically include three levels:general obligations,ancillary obligations,and special obligations.
According to last half of first paragraph of article 1219 of PRC Civil Code,patient's close relatives can exercise informed consent right only under circumstances of patient having no capacity to consent and protective treatment.When patient doesn't have the ability to understand,analyze and decide,he shouldn't entitled to consent,and patient's close relatives who defend their interests can exercise informed consent right.The words"unable to tell patient"in last half of first paragraph of article 1219 of PRC Civil Code refer to patient's no capacity to consent.When patient has a serious disease and other special circumstances,medical staff keep secret for patient,and patient can't know treatmental information and can't exercise informed consent right.So close relatives can exercise.The words"it is inappropriate to tell patient"in last half of first paragraph of article 1219 of PRC Civil Code refer to protective treatment.Because of no legal loophole,no similarity and conflict with other reasons of the judgment,"analogical reasoning of protective treatment"created by any court isn't the reasonable circumstance for patients'close relatives to exercise informed consent right.Whether from the theory of legislation or the theory of interpretation,"always nursing patient in hospital"created by any court isn't the reasonable circumstance for patients'close relatives to exercise informed consent right.
The Interpretation on Administrative Compensation clarifies the calculation benchmarks,calculation nodes,burden of proof,and burden of evidence in relation to the standards of administrative compensation,reaffirming,developing,or reconciling legislative and judicial practices.Taking the administrative compensation standards as a starting point,China's administrative compensation system has transitioned from providing appropriate remedies to full compensation,aligning its rules with civil tort compensation and gradually converging with the administrative compensation system in terms of its institutional structure.
When participating in crimes,e-commerce platforms are often not motivated by profit,but by non-action or neutral assistance.Their will is often derived from the performance of duties by employees or automated processes,so they cannot be held criminally responsible according to the traditional standards for the establishment of unit crimes.If natural persons performing duties are required to bear criminal responsibility,it violates the principle of proportionality between crime,responsibility,and punishment.Referring to the agency system in civil law,exploring the legislative intent of new cybercrime,and without violating the principle of legality,we can refer to the viewpoint of organizational responsibility theory,and amend the subject of unit crimes of e-commerce platforms to multiple employees performing duties.At the same time,"seeking benefits for the unit"is no longer a necessary criterion for the establishment of unit crimes on e-commerce platforms.Such adjustments can better adapt to the current operation mode of e-commerce platforms,and also comply with the principle of proportionality between crime,responsibility,and punishment.
China's legislation of artificial intelligence law has been started,and the basic issues such as the attribute,legislative purpose,adjustment object and basic principles of artificial intelligence law are urgently needed to be clarified,and on this basis,the institutional structure of artificial intelligence law is carried out.The artificial intelligence law should be positioned as a public law with the attributes of private law,with the legislative purpose of promoting the innovation of artificial intelligence technology and preventing the risks of artificial intelligence technology,and the object of adjustment is the research and development activities,application activities and risk management activities of artificial intelligence technology.The institutional framework of artificial intelligence law is designed under the guidance of the principles of fairness,reliability,controllability and trustworthiness,equal emphasis on security and development,and compliance.Specifically,the artificial intelligence law should establish an artificial intelligence development and promotion system from the perspective of realizing major breakthroughs in artificial intelligence technology and promoting the implementation of multiple application scenarios of artificial intelligence;Artificial intelligence safety risk prevention system is constructed by establishing AI access system,classification supervision system,trial and error tolerance supervision system,and collaborative supervision system.The obligation system of artificial intelligence developers and providers is constructed from two aspects:general obligation and special obligation.
Administrative legal liability is an important element of environmental law,and the current regulations of existing laws are relatively scattered,so promoting the systematic development of the environmental administrative legal liability system is an important issue in environmental law,and it is also a key focus in the compilation of the environmental code.It should be guided by environmental protection objectives,based on the application of traditional administrative legal liability,and fully consider the special characteristics of environmental administration for innovative development,to promote the systematic development of the government environmental administrative legal liability system,environmental administrative punishment system,and environmental administrative sanction system.In the compilation of the environmental code,appropriate consideration should be given to the legislative technical requirements,and the three types of liability should be properly organized.Firstly,the environmental administrative legal liability of the government should be provided in the general provisions of the legal liability chapter,and the government's environmental quality responsibility,ecological compensation responsibility,and environmental damage compensation responsibility should be stipulated in summarized provisions.Secondly,the punishment rules for administrative counterparts should be separately stipulated in the administrative legal liability section in the legal liability chapter as well as in pollution control and other chapters.The former specifies the general rules and norms for environmental administrative punishment,while the latter mainly provides specific administrative punishment rules for specific environmental administrative management systems.Thirdly,the administrative sanction on public officials should be concentrated and provided in the administrative legal liability chapter in a relatively general way.At the same time,it is necessary to ensure a smooth connection between environmental administrative legal liability and general provisions for administrative legal liability,civil liability system,and criminal liability system,and make appropriate arrangements for them in the legal liability system.
How to legally identify and protect the carbon emission rights and interests of emitters is a theoretical problem faced in the construction of China's carbon market.The current mainstream theory believes that carbon emission rights should be included in the existing legal framework from the perspective of right in rem and administrative licenses,and carbon emission rights of emitters should be adjusted with reference to traditional private or public rights rules.Facing the lack of objects and insufficient protection of trading interests,this approach leads to the failure of protecting carbon emission rights.By analyzing the type and nature of the protection of carbon emission rights and interests of emitters,it is proposed that it should be discussed as a pure allowance issue and its legal significance as a whole,laying a theoretical foundation for the carbon emission right interest form and protection method.The carbon emission rights of emitters are manifested as limited self-control over allowance in the form of interests,and the legal interests contained in this de facto control are essentially reflected in the freedom of allowance trading.Accordingly,the protection of carbon emission rights should be based on the maintenance of allowance control,and different protection methods should be provided according to the type of infringement of actual interests,which can be divided into administrative law,tort law and contract law protection models.
Various failures in financial regulation demonstrate that safeguarding against systemic financial risks cannot solely rely on the unilateral functions of financial regulatory authorities.It also needs to be supplemented by considering the role of financial regulation in the taxation of the financial system.The emergence and development of Pigouvian tax theory reflects the rationality and legitimacy of taxing systemic financial risks.Although there are still many practical difficulties in implementing financial risk correction taxes,countries have started exploring three approaches for implementing tax laws to regulate systemic financial risks:financial transaction taxes,financial behavioral taxes,and financial leverage taxes.This exploration comes in the aftermath of the subprime mortgage crisis.Standing at a higher historical starting point in the new journey of comprehensively building a modern socialist country,China's financial system reform and tax policy should evolve simultaneously to form a collaborative model with financial supervision as the main focus and tax regulation as a complementary measure.Taxing the transactions or behaviors of financial institutions is a flexible and effective method of economic governance that can reduce risky operations and increase tax revenue.Among these methods,the most popular financial tax is the corrective financial transaction tax,which can help alleviate the debt crisis.Additionally,taxing systemic financial risks will appropriately adjust the threshold and time for triggering tax obligations.Using bank tax and other financial leverage taxes as reserve taxes can also lay the groundwork before the tax is levied.
Training data is one of the three essential elements in generative artificial intelligence,alongside data,computing power,and algorithms.The quantity of training data significantly influences the"imagination"and creative capabilities of generative AI.However,the use of training data in model training by generative AI also raises concerns about the infringement of the rights and interests of training data subjects.The existing legal framework for protecting rights and interests struggles to adapt to the unique challenges posed by training data.Therefore,it is imperative to establish a novel data property rights system tailored to the nature,structure,and characteristics of training data.This will ensure the protection of the rights and interests of all stakeholders involved in the generation of generative AI.This aligns with the guiding principles of the national Twenty Data Regulations,which emphasize the need to construct a data foundational system that suits the characteristics of data,complies with the laws of digital economic development,safeguards national data security,and promotes innovation-led development.Ultimately,this initiative will contribute to the healthy development of generative artificial intelligence.
The new medical legal interest is the interest protected by the law which comes into being with the development of modern medical science and medical technology and meets the new needs of people's interests.The criminal law protection of new medical legal interests needs not only the constitutional basis to protect human dignity and personality dignity,but also the justification basis.This justification is based on protecting human dignity as the boundary of scientific research freedom in the cutting-edge medical field and addressing the weakness of ethical regulations in the cutting-edge medical field by recognizing the effectiveness of ethical norms.The core task of the protection of new medical legal interests in criminal law is to accurately delineate the boundary between crime and non-crime in the basic research and clinical application of cutting-edge medical technology,and to seek a balance between various conflicts of interest between preventing and striking serious violations of legal interests and the risks and benefits brought by cutting-edge medical technology.The ultimate goal is to encourage innovation and development of cutting-edge medical technologies while protecting the public interest and individual rights.
Chinese path to modernization,the only route boosting comprehensively the rejuvenation of the Chinese nation,determines the value orientation,function orientation and development law of our Constitution,and gives the Chinese Constitution rich theoretical connotation and distinct practical characteristics.China's Constitution not only draws rich ideological nutrients and normative construction resources from the"rich mineral deposits"of Chinese modernization,but also embodies the core elements and main content of Chinese modernization in the form of the fundamental law of the state,and provides the fundamental legal guarantee for Chinese modernization with its supreme legal status and strong legal force.The internal relation and benign interaction between the two deduce the unique and profound historical logic,theoretical logic and practical logic of China's constitution and Chinese modernization,and show a brand new modernization development mode and human constitutional civilization form.
犯罪构成要件理论是近代罪刑法定原则的要求与体现,以犯罪构成要件为引领建构和认定案件事实是刑事诉讼程序中的核心内容.犯罪构成要件事实认定本质上作为一项司法认知活动,其内涵与刑事证明、主观判断、价值评价等诉讼因子密不可分,并由认定主体、认定客体、认定方法等三大要素构成.犯罪构成要件事实认定问题遵循着独特的诉讼机理,其深受诉讼模式、审判程序、证明标准、证明模式等多重因素的影响和制约.
UGC创作和传播方式的转型,使版权权利"原子化"、版权公示缺失、作品可获得性受限的版权许可难题更为突出.传统的授权许可、集中许可和公共许可模式均无法化解UGC的版权许可困境,新的"屏蔽或变现"模式也面临忽视UGC创作者利益、方案过于单一等质疑.将区块链技术应用于"屏蔽或变现"模式中,不仅能在确权环节显著降低搜寻成本和实施成本,而且能在许可环节通过智能合约提供的标准化协议降低交易成本,促进UGC的高效创作和利用.为确保区块链技术助推下"屏蔽或变现"模式的运作顺畅,须通过明确平行创作规则、有效划定合理使用范围及强化UGC平台功能与责任,实现版权制度的衔接.
我国刑法所规制的危害国家安全犯罪动机类型多样,不同类型犯罪主体的主导型犯罪动机有明显差异.对危害国家安全犯罪的动因进行研究,从犯罪的本源、属性及形成过程着手探析,针对危害国家安全类犯罪活动寻源治本,可以从源头防范此类犯罪活动的发生.对危害国家安全犯罪动因的发展变化机理进行剖析,坚持预防为主、强化源头治理、分级分类施策和精准打击,可以提高防范化解、体系化治理和应对能力,推进国家安全体系和能力现代化,以新安全格局保障新发展格局.
当前,养老领域已成为非法集资的"重灾区",部分机构和企业以"高利息、高回报"为诱饵实施非法集资活动,吸收老年人资金,在犯罪特点上呈现出目标对象单一且关联、作案手段针对且欺骗、犯罪时空长周期且偏地域.在开展打击养老领域非法集资犯罪过程中,办案协作沟通不畅、主体责任难以落实、犯罪发现能力有待提升等"碎片化"现状已经严重影响了犯罪打击效果.鉴于此,基于整体性治理理论,应从完善组织协作机制、落实各方主体责任、提升犯罪发现能力三个方面来推进养老领域非法集资治理能力的提升.
行政变更判决需要接受宪法的控制.对方林富案的现有研究关注较多的是从实质正义角度论证判决的合理性,至于裁判文书本身应当如何释法说理却未受到应有的重视,因此,有必要从裁判文书的论证形式层面再次对该案进行讨论.为了实现个案正义,行政变更判决可以偏离法定处罚幅度,但这种变更判决不仅需要法官在裁判文书中提供实质理由证明判决偏离法律的正当性,还需要裁判文书引入强有力的权威理由作为形式依据.方林富案裁判文书所依据的行政处罚法原则不足以提供足够的权威分量,法官应当引入宪法有关条文作为权威理由,以合宪性续造的方式限缩处罚条款的适用范围.当然,合宪性续造的运用不能忽视权力分工原则的基本要求,法官的法律续造行为不能取代立法机关的立法行为.
