下载文档原格式
构建公权与私权相结合的大数据技术规治体系*吴伟光（清华大学法学院副教授）内容提要数据是信息的一种载体形式，由于大数据能够被机器智能处理而产生了大数据技术。
对大数据技术的规治应该采取公权力规制和私权自治相结合的模式。
信息主体和数据主体是不同的法律主体，分别享有不同的法益。
数据主体分为数据产生和存储主体和数据分析与处理主体，他们在大数据技术规治中承担着相应的权利、义务和责任。
对大数据技术的规治要遵守六个原则，即大数据技术使用目的正当性原则、数据产生合法性原则、民事主体信息数据化平等与公平原则、数据产生主体对数据享有专有权原则、促进大数据资源共享原则和数据安全原则。
对大数据技术的法律规制应该主要通过公法路径将六个原则转变成数据主体的公法义务和责任，数据主体将公法义务和责任转化成内部的管理责任和数据主体之间依赖私权利的契约责任，形成对大数据技术的公权力规制和私权自治相互配合的局面。
关键词大数据技术大数据数据主体信息法大数据技术规治·721·*本文获得清华大学社会科学学院和数据研究院合作计划＆清华大学自主科研计划文科专项经费支持。
本文中“规治”一词对应英文的“governance ”，指公权力和私权利共同规范治理。
人类因为信息而聪明，机器因为数据而智能。
大数据技术被认为将对人类社会有重大影响，其基本特征是可以将大量信息加以数据化并通过智能分析和处理来实现人类对信息使用的智能化。
大数据的生命周期可以有四步：（1）收集；（2）编辑和合并；（3）挖掘和分析；和（4）使用。
①对数据的分析最为重要，“分析使得大数据具有生命力。
没有分析，大数据可以部分或者全部地被存储或者被提取，但是其结果与最初是一样的。
分析，包括以各种不同计算技术的分析是大数据变革的推动力。
分析可以在大数据中产生新的价值，比大数据本身集合所产生的价值大得多”。
②有学者将大数据技术总结为四大能力，（1）大数据技术能够提供新形态的数据；（2）大数据技术能够提供诚实的数据；（3）大数据技术能够使得我们可以聚焦到特定人身上；以及（4）大数据技术能够使我们做很多发现因果关系的实验。
The concept of justice in sociolegal studiesPatricia EwickClark UniversityJustice is one of the most overused and underspecified concepts in the social scientific study of law. One reason for the lack of conceptual specificity is the uneasiness social scientists experience when asked to make a moral assessment of some decision, act or state of affairs. Naming and observing justice necessitates making a judgment rooted in values: Was an act or decision fair? Was it appropriate? Did it achieve some measure of justness? To engage in such assessments means we need to leave the value-free realm of so-called objective social science. Curiously- given the reluctance of social scientists to analyze justice - there seems to be general agreement that there are different sorts of justice. Often the word is preceded by an adjective connoting the various distinctions that have been drawn: procedural, substantive, and distributive. Although on the surface these qualifiers would seem to represent ever –finer distinctions of justice, they are actually evasions. Inflecting the qualifier allows us to ignore the core term (procedural justice has something to do with process, but what exactly about a process makes it just?).To avoid such epistemological exile, socio-legal scholars are much more likely to focus on justice’s evil twin: power. Unlike justice, power leaves a mark: it maims, it destroys, and (if we are to believe Foucault) it produces all sorts of things. In short it can be known by the trail it leaves and, thus, it avails itself of being observed, recorded and measured. Although I have written about – and thus must have been aware of - how social scientists tend to neglect justice by making it an understudy of power (Ewick 1997), I hadn’t fully recognized the degree to which this tendency marks my own empirical research and scholarship. For instance, in The Common Place of Law (Ewick and Silbey, 1997), the term “power,” has 17 entries (with instruction for the reader to “see also, ideology, hegemony and hierarchy”); “Resistance” has 37 entries.“Justice” does not appear in the index at all ( nor does the term “injustice”). Although this is a crude measure, it would suggest that justice has little to do with law and legality in either the legal consciousness of ordinary citizens or the imagination of sociolegal scholars.More recently, I have been studying a chapter of Voice of the Faithful, an international organization of faithful Catholics who formed after the sex scandal in order to bring about structural change in the Church (empowering the laity) and to support the victims of clergy sex abuse. In light of the group’s outrage at the scandal, and especially at the complicity of the Church hierarchy, I expected that notions of justice and injustice would be a central part of their experience and discourse. Yet, much like the citizens of NewJersey, members of VOTF are strangely silent on the subject of justice - expressing anger, hurt, outrage, betrayal, but rarely a sense of injustice.What, then, are we to make of this preoccupation with power? Is it merely epistemological? How are we to explain the relative infrequency with which people (who are not as wedded to positivist social science as social scientists of law might be) employ a discourse of justice?I have elsewhere theorized the relationship between justice and power as mutually constitutive. This relationship, moreover, offers a possible clarification of the eclipse of justice in both our understanding of law and the absent discourse about justice/injustice among citizens. Typically justice is thought of as external from legal power, functioning to demarcate the limits of such power by specifying standards against which it can be held accountable or by offering ideals that law does not yet embody. By contrast, I have proposed that justice and power stand in a dialectical relationship to one another. Conceptions of justice, in other words, catalyze, rather than simply contain power. Justice calls forth power; it demands actions as much as it limits it. Moreover, to the extent that conceptions of justice are historical constructions, whose articulation and acceptance needs to be explained, power is implicated in the construction of justice. In other words, just as the exercise of legal power is constituted by conceptions of justice, cultural understandings of justice are likewise defined by the power against which they are poised. This conceptualization invites us to examine the dynamic, historical processes through which power and justice operate and the sorts of misrecognitions that might result.Recently, for instance, I explored this process in an essay entitled “The Scale of Injustice” (2009). The essay examines transformation in the operation of power that make the recognition of injustice increasingly difficult. In the contemporary world of neoliberal law, hyper-rationalized governance, and global economies, power often operate from a distance and yet, at the same time, through finer circuitries of social life. In this world, individuals are part of shifting and overlapping networks rather than role-based relationships. Law exists at multiple, parallel planes. As a result, injustices often occur from a distance and, simultaneously, at a smaller scale. Responsibility for redressing systemic harms is shifting and vague. Woven into markets and bureaucracies, embedded into protocols and standard operating procedures, the scope of injustice is wide and deep. Such injustices are frequent, systemic and impersonal. Their consequences are often erosive rather than violent, they are cumulative rather than singular. In other words, as the scalar resolution of power shifts, the ability to apprehend its operation from the ground of everyday life diminishes. Finally, because it becomes increasingly difficult to name an event as unjust, to attribute agency or motive, or even calculate injury, these mundane injustices often go unrecognized and thus unnamed, although not unfelt. Perhaps our preoccupation with power (and correlative neglect of justice) , then, can be traced to the thing itself. Globalization and what Foucault has called governmentality have seemingly effaced power by removing it from the “here” and “now.” The apparent evacuation of power from everyday life inhibits the naming of injustice insofar as theincommensurability between the scale at which injuries are felt and the scale at which power operates incapacitates the sorts of ideological revisions that activate a sense of injustice.。
第25卷第12期河北法学V ol.25,No.122007年12月Hebei L aw ScienceDec .,2007国际商事合同中法律规避与意思自治的制约与权衡王 慧收稿日期:2007208228作者简介:王 慧(19582),女,天津人,北京大学法学院党委委员,副教授,国际经济法专业硕士研究生导师、导师组组长,研究方向:国际经济法学。
(北京大学法学院,北京100871)摘 要:在国际商事合同的准据法的确定问题上,当事人意思自治原则是各国及国际公约公认的首要原则。
但在理论上及有些国家的立法中,对当事人意思自治还有一些不合理的限制,其中包括要求当事人所选择的法律必须与合同有实际联系。
当事人通过改变或创设连结点的方式以使其合同表面符合有“实际联系”的要求,被认为构成国际私法上的法律规避。
对此问题的澄清有利于正确认识国际私法各种制度存在的价值。
通过分析得出,意思自治原则承认当事人有选择法律的自由,就等于接受了当事人有权规避某一国法律的事实。
当事人规避“实际联系”并未侵害法律所保护的正当利益。
国际私法不能用“实际联系”来限制当事人选择合同准据法的自由。
关键词:国际商事合同;意思自治;实际联系;法律规避中图分类号:DF961 文献标识码:A 文章编号:100223933(2007)1220117204On R estriction and B alance bet w een Evasion of La wand Autonomy of Will in International Commercial ContractsWAN G Hui(Law School ,Peking University ,Beijing 100871China )Abstract :As to ascertaining the governing law applicable to the international commercial contracts ,the rule of autonomy of will isthe primary principle widely accepted by both domestic laws of most countries and international treaties.However ,in theory as well as the legislation of some countries ,there are still some unreasonable restrictions on the rule of autonomy of will ,including the requirement of substantial connection between the law chosen by the parties and the contract.It is deemed to be the evasion of law that the parties make their contract meet the requirement of “substantial connection ”ostensibly by way of changing or establishing the connecting point.Clarification concerning this issue helps with understanding the value of various mechanisms in private international law.After analysis ,a conclusion can be drawn that the parties ’freedom to choose governing law itself indicates the parties ’rights to evade the law of a country.Evasion of substantial connection does not damage the legitimate interests protected by law.Private international law shall not restrict the parties ’freedom to choose governing law of contract with the substantial connection theory.K ey w ords :international commercial contract ;autonomy of will ;substantial connection ;evasion of law 在国际民事领域,法律规避的现象比较普遍,从法律规避现象最早出现在亲属法领域开始,现已扩展到国际民商事交往的各个领域,其中法律规避与国际商事合同中当事人选择合同准据法的意思自治原则又存在着某种关联。
Law of the People's Republic of China on Application of Laws toForeign-Related Civil RelationsPromulgating Institution: Standing Committee of the National People's CongressDocument Number: Order No. 36 of the President of the People's Republic of China Promulgating Date: 10/28/2010Effective Date: 04/01/2011Validity Status: ValidOrder No. 36 of the President of the People's Republic of ChinaThe Law of the People's Republic of China on Application of Laws to Foreign-Related Civil Relations, adopted on October 28, 2010 at the 17th session of the Standing Committee of the 11th National People's Congress of the People's Republic of China, is hereby promulgated and shall come into effecton April 1, 2011.President of the People's Republic of China Hu JintaoOctober 28, 2010 Law of the People's Republic of China on Application of Laws to Foreign-Related Civil Relations (Adopted at the 17th session of the Standing Committee of the 11th National People's Congress onOctober 28, 2010)Table of ContentsChapter 1 General ProvisionsChapter 2 Civil SubjectsChapter 3 Marriage and FamilyChapter 4 SuccessionChapter 5 Property RightsChapter 6 Creditor's RightsChapter 7 Intellectual Property RightsChapter 8 Supplementary ProvisionsChapter 1 General ProvisionsArticle 1 This Law is formulated with a view to specifying the application of laws to foreign-related civil relations, resolving foreign-related civil disputes in a reasonable manner, and safeguarding the legitimate rights and interests of the parties concerned.Article 2 Laws applicable to foreign-related civil relations shall be determined in accordance with this Law. Provisions on the application of laws to foreign-related civil relations otherwise prescribed in other laws shall prevail.In the absence of provisions on the application of laws to foreign-related civil relations as prescribed in this Law and other laws, laws having the most significant relationship with the foreign-related civil relation in question shall apply.Article 3 Parties concerned may, in accordance with the law, expressly choose laws applicable to foreign-related civil relations.Article 4 Mandatory provisions on foreign-related civil relations prescribed in laws of the People's Republic of China shall directly apply.Article 5 Laws of the People's Republic of China shall apply where the application of foreign laws will undermine social and public interests of the People's Republic of China.Article 6 In the event that laws of a given foreign country apply to the foreign-related civil relation inquestion, if different regions of the foreign country are governed by different laws, laws of the region having the most significant relationship with the foreign-related civil relation shall apply.Article 7 Limitations shall be governed by the laws applicable to the foreign-related civil relation in question.Article 8 Lex fori shall apply in determining the nature of foreign-related civil relations.Article 9 Foreign laws applicable to foreign-related civil relations shall not include laws on the application of laws of the foreign countries.Article 10 Foreign laws applicable to foreign-related civil relations shall be ascertained by people's courts, arbitration commissions or administrative organs. Parties concerned shall provide laws of the relevant foreign country if they choose to be governed by foreign laws.In the event that foreign laws are unable to be ascertained or contain no relevant provisions, laws of the People's Republic of China shall apply.Chapter 2 Civil SubjectsArticle 11 The capacity for civil rights of natural persons shall be governed by laws of their habitual residence.Article 12 The capacity for civil conduct of natural persons shall be governed by laws of their habitual residence.In the event that a natural person engages in civil activities, where he/she has no civil conduct capacity in accordance with the laws of the habitual residence but has such capacity in accordance with lex loci actus, the latter shall prevail, except for matters relating to marriage, family and succession.Article 13 Where a natural person is to be declared missing or dead, laws of the habitual residence of the natural person shall apply.Article 14 Laws of the registration place shall apply to the capacity for civil rights, capacity for civil conduct, organizational structure, shareholders' rights and obligations and other matters of a legal person and the branch offices thereof.Where the place of principal office of a legal person is different from its place of registration, laws of the place of principal office may apply. The habitual residence of a legal person shall be its place of principal office.Article 15 Contents of the rights of personality shall be governed by laws of the habitual residence of the right holder.Article 16 Agency shall be governed by lex loci actus, provided that the civil relation between the principal and the agent shall be governed by laws of the place of occurrence of the agency relationship. Parties concerned may choose laws applicable to entrustment and agency by agreement.Article 17 Parties concerned may choose laws applicable to trust by agreement. Where the parties have made no such choice, lex rei sitae of the trust property or laws of the place of occurrence of the trust relationship shall apply.Article 18 Parties concerned may agree upon the laws applicable to an arbitration agreement. Where the parties have made no such choice, laws of the domicile of the arbitration commission or laws of the place of arbitration shall apply.Article 19 In the event that lex patriae applies in accordance with this Law, where a natural person has two (2) or more nationalities, lex patriae of the country with his/her habitual residence shall apply; where no country of nationality has his/her habitual residence, lex patriae of the country having themost significant relationship with him/her shall apply. In the case of stateless natural persons or natural persons without clear nationality, laws of their habitual residence shall apply.Article 20 In the event that laws of the habitual residence shall apply in accordance with this Law, and that the habitual residence of a natural person is unclear, laws of his/her current residence shall apply.Chapter 3 Marriage and FamilyArticle 21 Conditions for marriage shall be governed by laws of the common habitual residence of both parties concerned. In the absence of a common habitual residence, common lex patriae of the parties shall apply. Where the parties are of different nationalities, and the parties get married in the habitual residence or country of nationality of either party, laws of the place of marriage shall apply.Article 22 Formalities for marriage shall be valid if they are in compliance with the laws of the place of marriage, or the laws of the habitual residence or lex patriae of either party.Article 23 Matrimonial personal relationship of a couple shall be governed by laws of their common habitual residence. In the absence of a common habitual residence, the common lex patriae of the couple shall apply.Article 24 Matrimonial property relationship of a couple may be governed by laws of the habitual residence or lex patriae of either party, or lex rei sitae of major properties, as chosen by the couple upon agreement. Where the couple have made no such choice, laws of their common habitual residence shall apply. In the absence of a common habitual residence, the common lex patriae of the couple shall apply. Article 25 Personal and property relationship between parents and children shall be governed by laws of their common habitual residence. In the absence of a common habitual residence, laws of the habitual residence or lex patriae of a party concerned that favors the rights and interests of the weak shall apply.Article 26 In the event of an uncontested divorce, the couple concerned may choose to apply laws of the habitual residence or lex patriae of either party. Where the couple have made no such choice, laws of their common habitual residence shall apply. In the absence of a common habitual residence, the common lex patriae of the couple shall apply. Where the couple are of different nationalities, laws of the place where the agency handling the divorce formalities is located shall apply.Article 27 In the case of a contested divorce, lex fori shall apply.Article 28 Conditions and formalities for adoption shall be governed by both the laws of the habitual residence of the adopter and the laws of the habitual residence of the adoptee. The validity of adoption shall be governed by laws of the habitual residence of the adopter at the time of adoption. Termination of the adoptive relationship shall be governed by lex fori or laws of the habitual residence of the adoptee at the time of adoption.Article 29 Dependence shall be governed by laws of the habitual residence or lex patriae of either party or lex rei sitae of major properties that favors the rights and interests of the dependent.Article 30 Guardianship shall be governed by laws of the habitual residence or lex patriae of either party that favors the rights and interests of the ward.Chapter 4 SuccessionArticle 31 Statutory succession shall be governed by laws of the habitual residence of the decedent at the time of death, provided that statutory succession to real properties shall be governed by lex situs of the properties.Article 32 In the case of succession ex testamento, a will shall be valid if it is in compliance with laws of the habitual residence or lex patriae of the testator or lex loci actus of will creation at the time of death or will creation.Article 33 The validity of a will shall be governed by laws of the habitual residence or lex patriae of the testator at the time of death or will creation.Article 34 Matters relating to the administration of estate shall be governed by lex rei sitae of the estate.Article 35 The ownership of estate left with no successor shall be governed by lex rei sitae of the estate at the time of death of the decedent.Chapter 5 Property RightsArticle 36 Property rights of real properties shall be governed by lex situs.Article 37 Parties concerned may choose the laws applicable to property rights of movable properties by agreement. Where the parties have made no such choice, lex rei sitae of the movable properties at the time of occurrence of the legal incident shall apply.Article 38 Parties concerned may agree upon the laws applicable to the change of property rights of movable properties during transport. Where the parties have made no such choice, laws of the transport destination shall apply.Article 39 In the case of marketable securities, laws of the place of realization of the rights of such securities or other laws having the most significant relationship with the securities shall apply. Article 40 Pledge of rights shall be governed by laws of the place where the pledge is instituted.Chapter 6 Creditor's RightsArticle 41 Parties concerned may choose the laws applicable to a contract by agreement. Where the parties have made no such choice, laws of the habitual residence of the party whose performance of obligations best reflects the characteristics of the contract or other laws having the most significant relationship with the contract shall apply.Article 42 A consumer contract shall be governed by laws of the habitual residence of the consumer. Where the consumer chooses to apply laws of the place where the goods or services are provided, or the business operator concerned does not engage in relevant business activities at the habitual residence of the consumer, laws of the place where the goods or services are provided shall apply.Article 43 A labor contract shall be governed by laws of the work place of the laborer. Where it is difficult to determine the work place of the laborer, laws of the place of principal office of the employer shall apply. Labor dispatch services may be governed by laws of the place of dispatch.Article 44 Tort liabilities shall be governed by lex loci delicti, provided that where the parties concerned have a common habitual residence, laws of the common habitual residence shall apply. Agreements on the application of laws reached by the parties concerned after the occurrence of tort shall prevail.Article 45 Product liabilities shall be governed by laws of the habitual residence of the infringed party. Where the infringed party chooses to apply laws of the place of principal office of the infringer or lex loci delicti, or the infringer does not engage in relevant business activities at the habitual residence of the infringed party, laws of the place of principal office of the infringer or lex loci delicti shall apply.Article 46 Infringement on the right of name, portrait, reputation or privacy or other rights of personality via the Internet or by other means shall be governed by laws of the habitual residence of the infringed party.Article 47 In the case of unjust enrichment and negotiorum gestio, laws chosen by the parties concerned by agreement shall apply. Where the parties have made no such choice, laws of the common habitual residence of the parties shall apply. In the absence of a common habitual residence, laws of the place of unjust enrichment or negotiorum gestio shall apply.Chapter 7 Intellectual Property RightsArticle 48 The ownership and contents of an intellectual property right shall be governed by laws of the place where protection is claimed.Article 49 Parties concerned may choose the laws applicable to the transfer and user-licensing of intellectual property rights by agreement. Where the parties have made no such choice, provisions on contracts herein shall apply.Article 50 Liabilities for infringement upon intellectual property rights shall be governed by laws of the place where protection is claimed. Parties concerned may also choose to apply lex fori by agreement after occurrence of the infringement.Chapter 8 Supplementary ProvisionsArticle 51 In the event of any discrepancy between this Law and Article 146 and Article 147 of the General Principles of the Civil Law of the People's Republic of China, as well as Article 36 of the Law of Succession of the People's Republic of China, this Law shall prevail.Article 52 This Law shall come into effect on April 1, 2011.。
国际私法期末考试知识点整理名词解释1：间接调整方法（Indirect adjustment method）.所谓间接调整方法，就是在有关的国内法和国际条约中规定某类国际民商事关系应受何种法律支配或调整，而不是直接规定民商事关系当事人权利与义务关系的方法，即通过冲突规范来调整国际民商事关系，它是国际私法的特有调整方法。
2（@）：法域，英文为law district, legal unit, legal region, territorial legal unit等多种表达法，是指适用独特法律制度的特定范围。
这个特定的范围既可能是空间范围，又可能是成员范围，还可能是时间范围。
正是基于此，法域有属地性法域、属人性法域和属时性法域之分。
3：法人（legal person）是指按照法定程序设立，有一定的组织机构和独立的财产，并能以自己的名义享有民事权利和承担民事义务的社会组织。
4：识别（qualification,classification,characterization）识别也称为定性或分类，是指法院在适用冲突规范时，依据一定的法律观念，对有关的事实构成作出定性或分类，将其归入特定的法律范畴，并对有关冲突规范所使用的名词进行解释，从而确定应适用的冲突规范的认识过程。
5: 反致（renvoi）广义的反致包括狭义的反致（remission）、转致、间接反致和外国法院说。
狭义的反致是对某一涉外民商事案件，法院按照法院地的冲突规则本应适用外国法，但外国法中的冲突规则指定适用法院地法，如果法院接受这种指定并适用法院地法，这种现象就叫做反致。
转致（transmissin）:是指对某一国际私法案件，甲国法院按照本国的冲突规范本应适用乙国法，乙国的冲突规范又指定适用丙国法，甲国法院因此适用了丙国实体法。
转致在法文中称为“二级反致”。
间接反致：是指对某一国际私法案件，甲国法院依本国的冲突规范应适用乙国法，依乙国的冲突规范又适用于丙国法，依丙国的冲突规范确适用于甲国法，甲国法院因此适用本国的实体法作为准据法。
《涉外民事关系法律适用法》英文作者：陈卫佐等STATUTE ON THE APPLICATION OF LAWS TO CIVIL RELATIONSHIPS INVOLVING FOREIGN ELEMENTS OF THEPEOPLE’S REPUBLIC OF CHINA(ADOPTED BY THE 17th SESSION OF THE STANDING COMMITTEE OF THE ELEVENTH NATIONAL PEOPLE’S CONGRESS ON 28 OCTOBER 2010)Translation by CHEN Weizuo* and Kevin M. MOORE** ContentsChapter I General ProvisionsChapter II Civil SubjectsChapter III Marriage and FamilyChapter IV SuccessionChapter V Rights in RemChapter VI ObligationsChapter VII Intellectual Property RightsChapter VIII Supplementary ProvisionsChapter I General ProvisionsArticle 1 The present Statute is enacted in order to clarify the application of laws to civil relationships involving foreign elements, to resolve civil disputes involving foreign elements in an equitable manner, and to safeguard the lawful rights and interests of parties.Article 2 The law applicable to civil relationships involving foreign elements shall be determined in accordance with the present Statute. If other statutes contain special provisions on the application of laws to civil relationships involving foreign elements, those provisions shall prevail.If the present Statute or other statutes contain no provisions with regard to the application of laws to civil relationships involving foreign elements, the law that has the closest connection with the civil relationship involving foreign elements shall be applied.Article 3 In accordance with statutory provisions, the parties may expressly choose the law applicable to a civil relationship involving foreign elements.Article 4 If the law of the People’s Republic of China contains mandatory rules on civil relationships involving foreign elements, those mandatory rules shall be applied directly.Article 5 If the application of a foreign law would cause harm to social and public interests of the People’s Republic of China, the law of the People’s Republic of China shall be applied.Article 6 If a civil relationship involving foreign elements is to be governed by foreign law, and if different regions in the foreign country have different laws in force, the law of the region with which the civil relationship involving foreign elements has the closest connection shall be applied.Article 7 Limitation of actions shall be governed by the law that is to govern the relevant civil relationship involving foreign elements.Article 8 The characterization of any civil relationship involving foreign elements shall be governed by the lex fori.Article 9 The law of a foreign country that is to govern a civil relationship involving foreign elements does not refer to the law on the application of laws of that country.Article 10 The law of a foreign country that is to govern a civil relationship involving foreign elements shall be ascertained by the people’s courts, arbitration institutions or administrative organs.If the law of a foreign country cannot be ascertained, or if the law of that country contains no relevant provisions, the law of the People’s Republic of China shall be applied.Chapter II Civil SubjectsArticle 11 The civil legal capacity of a natural person shall be governed by the law of the place of his/her habitual residence.Article 12 The capacity to engage in civil juristic acts of a natural person shall be governed by the law of the place of his/her habitual residence.If a natural person is engaged in civil activities, and he/she has no capacity to engage in civil juristic acts according to the law of the place of his/her habitual residence, but he/she has the capacity to engage in civil juristic acts according to the lex loci actus, the lex loci actus shall be applied, except if marriage, family or succession is involved.Article 13 Declaration of a missing person or declaration of death shall be governed by the law of the place of habitual residence of the natural person concerned.Article 14 Matters such as the civil legal capacity, the capacity to engage in civil juristic acts, organizations and institutions of a legal person and its branches, as well as shareholders’ rights and duties, shall be governed by the law of the place of registration.If the principal place of business of a legal person differs from the place of registration, the law of the principal place of business may be applied. The place of habitual residence of a legal person is its principal place of business.Article 15 Contents of rights of personality shall be governed by the law of the place of habitual residence of the right holder.Article 16 Agency shall be governed by the lex loci actus of the act of agency, but civil relationships between the principal and the agent shall be governed by the law of the place where the agency relationship occurs.The parties may choose by agreement the law applicable to an entrusted agency.Article 17 The parties may choose by agreement the law applicable to a trust. In the absence of a choice by the parties, the law of the place where the trust property is situated or the law of the place where the trust relationship occurs shall be applied.Article 18 The parties may choose by agreement the law applicable to an arbitration agreement. In the absence of a choice by the parties, the law of the place where the arbitration institution is situated or the law of the place of arbitration shall be applied.Article 19 If the law of the country of nationality is to be applied according to the present Statute, and a natural person has two or more nationalities, the law of the country of nationality in which he/she has a habitual residence shall be applied; if he/she has no habitual residence in any country of nationality, the law of the country of nationality with which he/she has the closest connection shall be applied. If a natural person has no nationality, or if his/her nationality is unknown, the law of the place of his/her habitual residence shall be applied.Article 20 If the law of the place of habitual residence is to be applied according to the present Statute, and the place of habitual residence of a natural person is unknown, the law of the place ofhis/her current residence shall be applied.Chapter III Marriage and FamilyArticle 21 Conditions of marriage shall be governed by the law of the place of common habitual residence of the parties; they shall be governed by the law of the country of the common nationality in the absence of a place of common habitual residence; they shall be governed by the lex loci celebrationis if there exists no common nationality and the marriage is to be entered into at the place of habitual residence of one party or in his/her country of nationality.Article 22 Formalities of marriage are valid if they satisfy the lex loci celebrationis, the law of the place of habitual residence or the law of the country of nationality of one party.Article 23 Personal relationships of spouses shall be governed by the law of the place of their common habitual residence; in the absence of a place of common habitual residence, the law of the country of their common nationality shall be applied.Article 24 With regard to property relationships of spouses, the parties may choose by agreement the law of the place of habitual residence or the law of the country of nationality of one party, or the law of the place where the principal property is situated, as applicable. In the absence of a choice by the parties, the law of the place of their common habitual residence shall be applied; in the absence of a place of common habitual residence, the law of the country of their common nationality shall be applied.Article 25 Personal relationships and property relationships between parent and child shall be governed by the law of the place of their common habitual residence; in the absence of a place of common habitual residence, the law of the place of habitual residence or the law of the country of nationality of one party shall be applied, provided that it is the law favoring protection of the rights and interests of the weaker party.Article 26 With regard to divorce by agreement, the parties may choose by agreement the law of the place of habitual residence or the law of the country of nationality of one party as applicable. In the absence of a choice by the parties, the law of the place of their common habitual residence shall be applied; in the absence of a place of common habitual residence, the law of the country of their common nationality shall be applied; in the absence of a common nationality, the law of the place where the institution conducting the divorce formalities is situated shall be applied.Article 27 Divorce by litigation shall be governed by the lex fori.Article 28 Conditions and formalities of adoption shall be governed by the law of the place of habitual residence of the adopter and the law of the place of habitual residence of the adoptee. Effects of adoption shall be governed by the law of the place of habitual residence of the adopter at the time of adoption. Dissolution of an adoption relationship shall be governed by the law of the place of habitual residence of the adoptee at the time of adoption or the lex fori.Article 29 Maintenance shall be governed by the law of the place of habitual residence or the law of the country of nationality of one party, or the law of the place where the principal property is situated, provided that it is the law favoring protection of the rights and interests of the person to be maintained.Article 30 Guardianship shall be governed by the law of the place of habitual residence or the law of the country of nationality of one party, provided that it is the law favoring protection of the rights and interests of the ward.Chapter IV SuccessionArticle 31 Intestate succession shall be governed by the law of the place of habitual residence of the decedent upon his/her death, but intestate succession of immovable property shall be governed by the law of the place where the immovable property is situated.Article 32 A testament is valid as to form if the form of the testament satisfies the law of the place of habitual residence, the law of the country of nationality of the testator or the lex loci actus of the act of testament at the time of making the testament, or upon the death of the testator.Article 33 Effects of a testament shall be governed by the law of the place of habitual residence or the law of the country of nationality of the testator at the time of making the testament, or upon the death of the testator.Article 34 Matters such as the administration of estates shall be governed by the law of the place where the estates are situated.Article 35 Devolution of heirless estates shall be governed by the law of the place where the estates are situated upon the death of the decedent.Chapter V Rights in RemArticle 36 Rights in rem of immovable property shall be governed by the law of the place where the immovable property is situated.Article 37 The parties may choose by agreement the law applicable to rights in rem of movable property. In the absence of a choice by the parties, the law of the place where the movable property is situated at the time of the occurrence of the juristic fact concerned shall be applied.Article 38 The parties may choose by agreement the law applicable to any change of rights in rem of movable property that takes place during transport. In the absence of a choice by the parties, the law of the transport destination shall be applied.Article 39 Securities shall be governed by the law of the place where the rights of the securities are realized, or by any other law that has the closest connection with the securities.Article 40 Pledge of rights shall be governed by the law of the place where the pledge is established.Chapter VI ObligationsArticle 41 The parties may choose by agreement the law applicable to a contract. In the absence of a choice by the parties, the contract shall be governed by the law of the place of habitual residence ofone party whose performance of obligations can best embody the characteristics of the contract, or by any other law that has the closest connection with the contract.Article 42 Consumer contracts shall be governed by the law of the place of the consumer’s habitual residence; if the consumer has chosen the law of the place of the provision of commodities or services as applicable, or if the entrepreneur has not been engaged in relevant business activities at the place of the consumer’s habitual residence, the law of the place of the provision of commodities or services shall be applied.Article 43 Labor contracts shall be governed by the law of the place where the laborer works; if the place where laborer works is difficult to ascertain, the law of the principal place of business of the employing unit shall be applied. Labor dispatch may be governed by the law of the dispatching place.Article 44 Tortious liability shall be governed by the lex loci delicti, but it shall be governed by the law of the place of common habitual residence if the parties have a place of common habitual residence. If the parties agree to choose the applicable law after the occurrence of a tortious act, their agreement shall be followed.Article 45 Product liability shall be governed by the law of the place of habitual residence of the person whose right has been infringed upon; if the person whose right has been infringed upon has chosen the law of the principal place of business of the infringing person or the lex loci damni as applicable, or if the infringing person has not been engaged in relevant business activities at the place of habitual residence of the person whose right has been infringed upon, the law of the principal place of business of the infringing person or the lex loci damni shall be applied.Article 46 If rights of personality, such as right of name, right of portrait, right of reputation and right of privacy, have been infringed upon via the internet or by any other means, the law of the place of habitual residence of the person whose right has been infringed upon shall be applied.Article 47 Unjust enrichment or negotiorum gestio shall be governed by the law chosen as applicable by the parties by agreement. In the absence of a choice by the parties, the law of the place of common habitual residence of the parties shall be applied; in the absence of a place of common habitual residence, the law of the place of occurrence of the unjust enrichment or negotiorum gestio shall be applied.Chapter VII Intellectual Property RightsArticle 48 Devolution and contents of intellectual property rights shall be governed by the law of the place for which the protection is invoked.Article 49 The parties may choose by agreement the law applicable to the transfer and licensed use of intellectual property rights. In the absence of a choice by the parties, the provisions of the present Statute relating to contracts shall be applied.Article 50 Tortious liability arising out of infringement of intellectual property rights shall be governed by the law of the place for which the protection is invoked; after occurrence of the tortious act, the parties may also choose by agreement the lex fori as applicable.Chapter VIII Supplementary ProvisionsArticle 51 Where Articles 146 and 147 of the General Principles of Civil Law of the Peop le’sRepublic of China, and Article 36 of the Succession Law of the People’s Republic of China, differ from the provisions of the present Statute, the present Statute shall be applied.Article 52 The present Statute shall come into force on 1 April 2011.* Director of the Research Centre for Private International Law and Comparative Law, Tsinghua University School of Law, Beijing, China; Doctor of Laws, Wuhan University, China; LL.M. and doctor iuris, Universität des Saarlandes, Germany; professeur invite à la Faculté internationale de droit comparéde Strasbourg, France (since 2003); professeur invité à l’Université de Strasbourg, France (2005-2010); to teach a special course in French on La nouvelle codification du droit international privé chinois (The New Codification of Chinese Private International Law) from 30 July to 3 August 2012 at the Hague Academy of International Law during its 2012 summer session of private international law. Address: Tsinghua University School of Law, 100084 Beijing, China. E-mail: chenwz@. The present author owes great thanks to Kevin M. Moore (LL.M., Peking University; Legislative Aide, Oregon Senator Floyd Prozanski; juris doctor candidate, Willamette University College of Law) for his assistance and helpful suggestions.* * LL.M., Peking University; Legislative Aide, Oregon Senator Floyd Prozanski; juris doctor candidate, Willamette University College of Law.本文原载于《国际私法年刊》（Yearbook of Private International Law）第12卷（2010年），第669－674页，由德国sellier. european law publishers 和瑞士比较法研究所出版。
总第499期Vol.499大学（社会科学）University （Social Science ）2021年2月Feb.2021名古屋议定书框架下遗传资源利用者的国内立法概述———欧盟规则与日本法的比较何劼（西南学院大学法学研究科，日本福冈8148511）摘要：名古屋议定书被认为是在遗传资源的相关权利保护方面最具有可实践性和实际拘束力的国际条约之一。
作为议定书缔约方中具有代表性的遗传资源利用者，欧盟和日本均批准加入了议定书，并且按照议定书第15条的要求采取了本国的司法性的、行政性的或者政策性的措施。
本文探索了名古屋议定书框架下遗传资源利用者的国内立法背景、主要制度、对不遵守规则者的应对，以及例外与限制。
研究发现，两个体系均设定有各种适用限制，这也对我国的相关立法在效率和时间上提出了一定的要求。
关键词：欧盟规则；应有的注意；ABS 指南；报告义务中图分类号：D93/97文献标识码：A文章编号：1673-7164（2021）05-0035-03作者简介：何劼（1986—），男，法学博士，日本西南学院大学法学研究科博士后研究员，研究方向：环境法、知识产权法、传统知识与遗传资源的保护。
①EU.Regulation （EU ）No 511/2014of the European Parliament and of the Council of 16April 2014on Compliance Mea-sures for Users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union ［DB/OL ］.［2019-09-20］.https ：//eur-lex.europa.eu/legal-content/EN/TXT/？uri=OJ ：JOL_2014_150_R_0002.（该规则的英文文本可以在欧盟规则数据库EUR-Lex 中在线阅览）②mission Implementing Regulation （EU ）2015/1866/of 13October 2015Laying Down Detailed Rules for the Implementation of Regulation （EU ）No 511/2014of the European Parliament and of the Council as Regards the Register of Collections ，Monitoring User Compliance and Best Practices ［EB/OL ］.［2019-09-20］.https ：//op.europa.eu/en/publication-detail/-/publication/a0c57c2c-76f5-11e5-86db-01aa75ed71a1/language-en.（细则的英文文本可以在链接中获取）③这里的利用过程中的相关当事人包括资源的输入者、中转者、利用者（从事研究开发的个人或单位）、商业活动者（对资源及开发成果进行商业化利用，比如生产贩卖的个人或单位）以及排他性权利保有者。
国际私法英文名解汇总纲目版Civil and commercial legal relations with(involving) foreign elements = international civil and commercial legal relations 具（含）有涉外（国际）因素的民商事法律关系/跨国民商事法律关系/国际民商事法律关系/涉外民商事法律关系Conflict rules = rule of application of law = choice of law rules = rule of private international law 冲突规范/法律适用规范/法律选择规范/国际私法规范Substantive rules 实体规范Conflict of laws 法律冲突/法律抵触Interregional conflict of laws 法律的区际冲突Personal supremacy 属人优越权Territorial supremacy 属地优越权Uniform substantive rules 统一实体法规范The Hague Conference of Private Internatioal Law 海牙国际私法会议autonomy of will 意思自治原则Lex causae = applicable law 准据法Category = Object of connection = classification of issue = operative facts 范围/连接对象/问题的分类/起作用的事实Attribution 系属Unilateral conflict rules 单边冲突规范Bilateral conflict rules = all-sided conflict rules 双边冲突规范Double rules for regulating the conflict of laws 重叠适用的冲突规范Choice rules for regulating the conflict of laws 选择适用的冲突规范Point of contact = connecting factor = connecting ground 连接点/连接因素/连接根据Formula of attribution 系属公式Lex personalis 属人法Lex patriae 本国法/国籍国法Lex domicilii 住所地法Habitual residence 惯常居所Lex rei sitae = lex loci situs = lex situs 物之所在地法Lex loci actus 行为地法Locus regit actum 场所支配行为Lex loci contractus 合同缔结地法Lex loci solutionis 合同履行地法Lex loci delicti 侵权行为地法Lex loci celebratiois 婚姻举行地法Lex voluntatis 当事人合意选择的法律Autonomie de la volonté =L'autonomie de la volonté = autonomy of will 意思自治原则Lex fori 法院地法Law of the flag 旗国法Law of the place of the most significant relationship 最密切联系地法Lex causae = applicable law 准据法Rule of law 法律规范Preliminary question = incidental problem 先决问题/附带问题Principal question 主要问题/本问题Jurisdiction-selecting rules 管辖权选择方法Substance 实体问题Procedure 程序问题Right 权利（问题）/实体问题Remedy 救济（问题）/程序问题Statues of limitation 时效问题Burden of proof 举证责任Presumptions 推定Presumptions of fact 事实的推定Presumptions of law 法律的推定Characterization = qualification = classification = identification 识别/定性/分类Movable property 动产Immovable property 不动产Personal property v. Real property Renvoi 反致Remission = renvoi au premier degré直接反致/一级反致/狭义反致Transmission = renvoi au second degré转致/二级反致Indirect remission 间接反致/大反致Double renvoi = foreign court theory 双重反致/外国法院说Evasion of law = fraude a la loi = fraudulent creation of points of contact 法律规避/法律欺诈/僭窃法律/欺诈设立连接点The reservation of public order 公共秩序保留制度Substantial contact 实质的联系The ascertainment of foreign law = proof of foreign law 外国法（内容）的查明/外国法的证明Nationality 国籍dependency 法定住所/从属住所Residence 居所Habitual resident 习惯居所/惯常居所Legal person 法人Public body 公共团体State immunity 国家豁免Immunity from jurisdiction = immunity ratione personae 司法管辖豁免/属人理由的豁免Immunity from execution/immunity ratione materiae 执行豁免/属物理由的豁免The doctrine of absolute immunity 绝对豁免理论The doctrine of relative or restrictive immunity 限制豁免论/职能豁免论Immunity of state property 国家财产豁免National treatment 国民待遇Most-favoured-nation treatment = MFN 最惠国待遇Preferential treatment 优惠待遇Non-discriminate treatment 非歧视待遇Capacity for right （民事）权利能力Allgemeine Rechtsfähigkeit 一般权利能力Besondere Rechtsfähigkeit 特别权利能力Declaration of absence 宣告失踪Declaration of death 宣告死亡/推定死亡Right in rem 物权Lex loci rei sitae = lex situs = Lex rei sitae物之所在地法Shares 股份Nationalization 国有化Requisition 征用Confiscation 没收Expropriation 征收Trusts 信托Trust property 信托财产Bills of exchange 汇票Promissory notes 本票Cheques 支票Intellectual property 知识产权/智慧产权Industrial property 工业产权Patent 专利Trade mark 商标Priority of registration “注册在先”原则Priority of use “使用在先”原则Copyright 著作权/版权Droit de autear 作者权理论Paris Convention for the Protection of Industrial Property 《保护工业产权的巴黎公约》The doctrine of the most significant relationship 最密切联系原则The most real connection 最真实联系Contracting states 缔约国Reservation 保留Production sharing contract 产品分成合同The service contract 服务合同The law of the place of the tort 侵权行为地法The place of acting 加害行为实施地The place of injury 加害结果发生地The law of the forum 法院地法A mixture of the lex fori and the lex loci delicti = Rule of double actionability重叠适用侵权行为地法和法院地法/双重可诉原则Unjust enrichment 不当得利Negotiorum gestio = voluntary agency 无因管理Quasi-contractual obligation 准合同之债True successor 真正的继承人International civil procedure 国际民事诉讼International commercial arbitration 国际商事仲裁China International Ecomomic and Trade Arbitration Commission = CIETAC = The Court of Arbitration of China Chamber of International Commerce = CCOIC Court of Arbitration 中国国际经济贸易仲裁委员会/中国国际商会仲裁院Agreement of international commercial arbitration 国际商事仲裁协议Principal contract 主合同Arbitration clause 仲裁条款Submission agreement 仲裁协议书Litigation 排除诉讼Capacity （仲裁当事人的）资格The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 《承认和执行外国仲裁裁决公约》/《纽约公约》Exclusive jurisdiction 排他的管辖权Substantive law 实体法Adjective law 程序法Rules of procedure of arbitration 仲裁程序规则Mandatory rules 强制性规则Agency agreement 代理协定Home state 本国Direct line直接适用的法International jurisdiction = competence generale = competence internationale 国际管辖权/一般的管辖权Local jurisdiction = competence speciale = competence interne国内管辖权/特别的管辖权Competence generale directe 直接的一般管辖权Competence generale indirecte 间接的一般管辖权International judicial assistance in civil matters 国际（民事领域）司法协助Service = evidence abroad 司法协助Commissioner 特派员取证Public summons 公共传票Forcible service 强制送达Non-forcible service 非强制送达Nonformal service 非正式送达Arbitration 仲裁/公断Arbitrability 争议可仲裁性Arbitration clause 仲裁条款Submission to arbitration agreement 提交仲裁协议书Ad hoc arbitration agency 临时仲裁机构/特别仲裁机构/专设仲裁机构Institutional arbitration 机构仲裁Arbitration Court of International Chamber of Commerce = ICC国际商会仲裁院Arbitral proceedings 仲裁程序London Court of International Arbitration = LCIA 伦敦国际仲裁院Charted Institute of Arbitration 特许仲裁员协会China International Ecomomic and Trade Arbitration Commission = CIETAC 中国国际经济贸易仲裁委员会/中国国际商会仲裁院China Maritime Arbitration Commission = CMAC 中国海事仲裁委员会Final award 最后裁决Preliminary award 初裁决/预裁决Partial award 部分裁决Default award 缺席裁决No proper notice 未给予适当通知Unable to present the case 未能提出申辩。
Law Governed Interaction(LGI):the Concept,its Implementation,and its Usage1Naftaly MinskyDepartment of Computer ScienceRutgers UniversityEmail:minsky@web:/minsky/November29,20041Work supported in part by NSF grant R-04-10485,and by the NJ Commission on Science and Technology “Excellence Award”Contents1Preface5 2Introduction62.1Informal Examples of Interaction Laws (6)2.1.1A Budgeted-Consumption(BC)Policy (7)2.1.2Establishing Layered Architecture(LA) (7)2.1.3A Flow Control(F C)Policy (7)3Basics93.1LGI Agents,and Communities (9)3.2LGI communities (10)3.3The Concept of Law Under LGI,and its Structure (11)3.3.1On the Structure of Laws: (11)3.3.2The Control-State (11)3.3.3Regulated Events (12)3.3.4Primitive Operations (13)3.4Languages for Writing Laws (13)3.4.1The Prolog-Based and Java-Based Law Languages (13)3.4.2On the Prolog-Based Law-Language (14)3.5Examples (15)3.5.1A Budgeted Consumption Law (15)3.5.2A Law of Layered Architecture (16)3.5.3A Flow Control Law (17)3.6The Law-Enforcement Mechanism (19)3.7On The Local Nature of Laws: (21)3.8The Moses Middleware (21)3.8.1The Controller (22)3.8.2Controller-Server(C-Server,for short) (22)3.8.3Actor-Controller Interfaces: (22)3.8.4Law-Server(L-Server,for short): (22)3.9Employing LGI (22)3.9.1Engagement (23)3.9.2Operation: (24)3.9.3Temporary Disconnection Between an Actor and its Controller (25)3.9.4The Death of an LGI-Agent (25)3.9.5On the Formation and Operations of an LGI-Community (26)4Advanced Features274.1The Concept of Enforced Obligation (27)4.1.1An Example (28)4.1.1.0.1The BC Law—Illustrating the Use of Obligations (28)4.1.1.0.2Obligation in Deontic Logic (29)4.1.1.0.3Further Details of Obligations (29)4.2Exceptions (30)4.3Regulated Use of Digital Certificates Under LGI (31)4.3.1The Structure and Creation of LGI-Certificates (32)4.3.2Specifying Acceptable Certifying Authorities: (32)4.3.3Authenticating via Certificates (32)4.3.4An Example (34)4.3.5Dynamic Addition and Deletion of Authority Clauses (35)4.4Interoperability Between LGI-Communities (35)4.5Interoperability Between an LGI-Agents and Agents Not Regulated by LGI (37)4.6FingerPrints (37)4.7Reflexive Agents,and their Roles (38)4.7.1On Becoming a Reflexive Agent by Disconnection (38)4.7.2Connection to a Reflexive Agent: (38)4.7.3example (39)4.7.4The Creation of Reflexive Agents (39)4.8Non-Primitive Features (40)4.8.1Obligations on State Change (40)4.8.2Multicast (40)5The Java-Based Langauge for Writing Laws415.1The Base-Class Called Law (41)5.2Law-Classes,and their Operation (42)5.2.1Correspondance between events,and the event-methods they invoke (42)5.2.2Accessing the State of an Agent (43)5.3The Java Version of Law LA (43)5.4Conventions (43)5.5Security and Other Aspects (43)6The Moses Middleware:the Infrastructure of LGI466.1Controllers,and their deployment (46)6.2Actor-Controller Interfaces (47)6.2.1Human-Controller Interfaces (47)6.2.2Program-Controller Interface (47)6.2.2.1The Member Class (47)6.2.2.2The ExMember Class (49)6.3Security-Related Tools (50)6.3.1Key creation and handling (50)6.3.2Certificate creation and handling (50)6.4Miscellanious Tools (51)6.4.1Computing the Hash of a Public key (52)6.4.2Computing the Hash of a Law (52)6.5Controller-Server (52)6.6Law-Server (53)6.6.1Accessing the Law Server (53)6.6.2Starting the Law Server (53)7Specifications557.1The Control-State (55)7.1.1The Law-based Control-State(CS) (56)7.1.2Distinguished Control-State(DCS) (56)7.1.3The Context (56)7.2Regulated Events (57)7.2.1adopted (58)7.2.3certified (59)7.2.4created (59)7.2.5disconnected (59)7.2.6exception (59)7.2.7obligationDue (60)7.2.8reconnected (60)7.2.9sent (60)7.2.10stateChanged (60)7.2.11submitted (61)7.3Primitive Operations (61)7.3.1Communication Operations (62)7.3.1.1deliver (62)7.3.1.2forward (62)7.3.1.3multicast (63)7.3.1.4release (63)7.3.2Operations on the control state (64)7.3.2.1add,delete&replace (64)7.3.2.2incr&decr (64)7.3.2.3replaceCS&addCS (65)7.3.3Obligation Related Operations (65)7.3.3.1imposeObligation (65)7.3.3.2repealObligation (65)7.3.3.3imposeStateObligation (66)7.3.3.4repealStateObligation (66)7.3.4Operations on the portal table and on the authority table (66)7.3.4.1addPortal&delPortal (66)7.3.4.2addAuthority&delAuthority (67)7.3.5Misceleneous Operations (68)7.3.5.1quit (68)7.3.5.2createFingerPrint (68)7.3.5.3setPassword (68)7.3.5.4create (68)7.3.6Operations Designed for the Interface with the Actor (69)7.3.6.1show (69)7.3.6.2discloseLaw&discloseCS (69)7.3.6.3enterTest&exitTest (70)7.4The Preamble of the Law (70)A Apendices72A.1Law Server (72)A.1.1General Description (72)A.1.2Usage (72)A.1.2.1Web Interface (72)A.1.3Administration interface (72)A.1.3.0.1Background mode (73)A.1.3.0.2Interactive mode (73)A.2orphans (73)A.2.1Controller-Controller Authentication Protocol (73)A.3On the Performance of LGI (74)A.3.1An Analysis of the Relative Overhead of LGI (75)A.3.1.0.3Typical values: (75)A.3.1.0.4On Congestion and Scalability: (75)A.3.1.0.5The relative overhead of centralized coordination: (76)A.3.2The Relative Overhead of LGI,Under Various Conditions (76)A.3.2.1Using Local Controllers (76)A.3.2.2Using Remote Controllers (76)A.3.2.3Sharing Controllers (77)A.3.2.4Bypassing a Controller (77)A.3.3On the Performance of the Current Moses Toolkit (78)A.3.3.0.1Experimental Results: (78)A.4notes (79)A.4.1Release Plan (79)A.4.1.1questions and TODOs (79)A.4.1.2organization (79)A.4.1.3documentations (79)A.4.1.4testing (79)A.4.1.5performance (79)A.4.1.6what is not covered here,and future development (79)A.4.1.7design of website (80)A.4.1.8distribution list (80)A.4.2Journal (80)A.4.3Future develpment (80)A.4.4random comments (80)A.4.5ideas (80)Chapter1Preface[[The general characterization of LGI]]Law-Governed Interaction(LGI)is a mode of interaction between post distributed actors,which[[...]][[relation to policy and coordination mechnishm,as well as middleware, somewhat related to JMS and CORBA.Differences:light wait,less services but much reacher and more sopisticated regulative mechanism;and policy mechanisms.Mention synch and asynch...]][[range of applications;give a URL]]post [[nature of this document(purpose and structure]][[This report is meant to be used as an introduction post to LGI,as well as a self contained manual for it.It combines(a)the specification of all the features of LGI;(b)motivation for many of these features,along with some examples of their use;(c)description ofthe implementation of LGI,the the“Moses”middleware,in sufficient detail to allow the reader to deploy it himself or herself;and(d)references to papers that discuss a variaty of applications of LGI.Also point out what is missing from it,and can be found elseware,or not at all for now]][[history]][[list everybody that contributed to LGI::Several people participated in the implementation post of LGI,and helped in refining its concepts,and in exploring its various applications,In particular,Junbiao Zhang implemented a prototype of LGI;Victoria Ungureanu implemented thefirst version of the Moses middleware,which provided complete support for LGI;Xuhui Ao,Takahiro Murata and Mihail Ionescu mademany important additions to Moses,including the concept of law-hierarchy,and that of intelligent human-interfaces;and Constantine Serban built a new and more efficient implementation of Moses,and added to itthe Java-based language for writing laws,and the support for synchronous communication.]] [[Acknowledgment:]]post Finally,I wish to thank all the mentioned above for helping to refine the LGI concept,and to implementthe Moses middleware;and I am particularly grateful to Constantine Serban,without whom this documentcould not have been written.I also wish to thank Jerrold Leichter,Yaron Minsky and Thu Nguyen for many useful discussions that deepened my understanding of the subject matter.Chapter2Introduction[[outline::]]<==n •@the problem address here:heterogenous,distributes,gropu which may be very large and open;whose members need to interact with each other,without knowing much about each other(??),forvarious reasons...[[introduce“actor”]]•@car example•@other examples(this may actually be enough):trading;the comonents of a large distributed syst,such as an enterprise,which is increasingly...a mass...;•@in smal or homogeneous system one may build such agents to conform to a desired protoco.Thisluxury we do not have here.Thus enforcement.•@broad definition of LGI“interaction laws”(generalization of tradicional AC policie)•@the term“law”•@charactersitics:•@@expressive power how it generalize AC•@@commanality:not just server centric•@@decentarization•@@interoperability•@@incrementality•@outline of the paper2.1Informal Examples of Interaction LawsWe introduce here three different policies that can be supported by LGI.They are not toy policies.They canbe applied to very large,heterogenous and distributed communities;they could provide real benefits,when enforced;and they are hard,or even impossible,to implement scalably via any of the conventional access-control mechanism.In Section3.5we show how these policies can be formalization as LGI laws,which lend themselves to scalable enforcement.It should be pointed out that the policies introduced below are somewhat simplified,in particular in thatthey are not fault tolerant.This and other limitations of some of these policies will be addressed in Section4,while illustrating various additional features of LGI.2.1.1A Budgeted-Consumption(BC)PolicyConsider a distributed community C of agents that provide services to each other—some of the members of C could be designated as servers,and the others as their clients,or,C might be a P2P community such as Gnutella[10],where every agent may acd as both a server and a client.Suppose that we would like to regulate the number of requests that any given member of C can send,and to record the number of requests that each member received.Such regulation can be accomplished via the following policy:1.Every member x of this community maintains a budget B of requests it can make.That is:x would notsend any requests if its budget is zero,and when it does sends a request,it would decrement its budget by1.2.Every member x of this community maintains a counter V of the requests it has received.3.The budget of all members in C can be set by a distinguished agent called the regulator.And everyagent can report to the regulator the correct count V of visits to it.If this—to be called budgeted consumption policy,or BC—is enforced,then it would have the following consequences:(a)the regulator would have control over the total number of request that any other member of C can make;and(b)the regulator can receive reliable reports about the number of visits that every member of C recieved.2.1.2Establishing Layered Architecture(LA)Layered architecture is one of the most celebrated organizational principles for software system.Under this architecture the various system components are organized into groups,called“layers,”labeled with succesive integers,starting with zero;and which are subject to the following global constraint:components can send messages to each other only if the sender resides at the layer of the target,or at the layer right above it.(The term“message”here is usually understood as a method call,or as a remote-procedure-call(RPC,or RMI). But with some minor modifications,layered architecture makes sense for asynchronous messages as well.) The concept of layered architecture was originally formulated,and used,for monolithic centralized sys-tems,where all system components are compiled together,and usually operate in a single address space. There is no great need for enforcement of LA in this context,although some enforcement techniques were developed:specificaly for this architecture,by Ossher[24],and via a more general mechanism,by Minsky [16,19].But enforcement is necessary in the more open and dynamically changing context of distributed sys-tems.The following is a formulation of LA for such a distributed community C of agents.This formulation has two parts,which address:(1)the layered structure of the community,and(2)the constraint on message passing between its members.yered structure:Members of C are assigned a non-negative integer that identifies their layer.Thisassignment,to given agent x,can be done dynamically,by a distinguished agent called mgr,via a message setLevel(k)it sends to x.2.Constraint on message passing:Messages can be transferred between members of community C onlyif the sender resides at the layer of the target,or at the layer right above it.(This constraint does not apply to the setLevel messages,mentioned in point91)above).Note that being in the same level is a problematic concept in a distributed context,where the levels of various agents can be changed dynamically.We will address this issue later,when this policy is formalized under LGI.2.1.3A Flow Control(F C)PolicyWe now consider a different techniques for regulatingflow of messages.We would like to provide each member of a community C of peers with the ability to control theflow of messages to it,essentially via back pressure on the senders.This is somewhat analogous to theflow-control provided by TCP/IP,but it isformulated for the application level,is much moreflexible,and unlike in the TCP/IP case,it can be enforced via LGI.More sepcifically,we employ the following policy,over all interactions between members of community C:After a member x of this community received any message from another member y,x can sendto y a message setDelay(d),forcing y to observe a delay of d seconds between any pair ofmessages its sends to x.The enforcement of this policy should mean that after receiving the delay message from x,y should not be able to send to x more than one message in any time interval d,so that x would not have to cope with unwanted messages from y,dropping those it cannot handle.Therefore,the enforcement must be done mostly at the sender(client)side,contrary to the server-centric approach to access control.(We will see in Section3.5.3how this policy,called F C,for“flow control,”is formulated and scalably enforced via LGI.)Chapter3The Basic Architecture of LGI,and its UsageThis section introduces the basic concepts of LGI,enough to support relatively simple applications,includingthe examples introduced in Section2.[[preview]]<==n 3.1LGI Agents,and Communities[[talk about LGI adress and about real name of some kind]]<==n An active entity whose interactions are regulated by an LGI law L is called an L-agent;or an LGI-agent,when the specific law at hand needs not be specified,or simply an agent,for short.More specifically,an L-agent x is a pair A x,T x ,where A x—called the actor of this agent—is an autonomous computing process that attempts to interact with other LGI agents;and T x—called the controllerof agent x—mediates all such interactions,according to law L.The collection of all such L-agents is calledthe L-community;or simply a community,when the law needs not be specified.We will now discuss the various concepts introduced above in more details,illustrating them via Figure3.1.Figure3.1:OverviewActors:As far as LGI is concerned,an actor is a black box,viewed simply as sources of messages and targets for them,whose internal structure and behavior are unknown.So,an actor can be driven by a program,written in an arbitrary programming language,or it may be a human,that interacts with other LGI-agents via some software interface.(Actors are represented by shaded circles in Figure3.1Whether programmed or unprogrammed,the entity that plays the role of an actor of an L-agent,can operate,concurrently,as the actorof any number of LGI agents,possibly under different laws;it can also exchange non-LGI messages with other software entities.This is because LGI assumes exherts no control over the bahavior of actors—althoughit does regulate the messages they exchange explicitly under LGI.Controllers:These are trusted components of the LGI midleware—the distributed infrastructure that sup-ports LGI—that serve as mediators between actors interacting under LGI.For example,controller T x(see Figure3.1)mediates the interaction between actor A x and other LGI-agents.Controller T x(“T,”for“trusted”)maintains,what we call,the control-state(or c-state,for short)of x,which is not directly accassible to actor A x.The semantics of the c-state of an agent,and its dynamic behavior,are defined by the law under which the agent in question operates.Typically,such a state representssuch things as the role that this agent is to play in the community,special privileges it has under this law, and various kinds of tokens it carries.We point out that although logically,each LGI-agent has its owncontroller,in fact,a single physical controller can serve several agents.(For more about controllers see Section3.8.1.)@@@The LGI-address of an agent A x,T x (i.e.,its address for all LGI communication) is LN@IPA,where IPA is the IP address of the host of the controller T x,and LN is the name selected bythe actor A x when adopting this controller—which must be unique among all the agents handled by this controller1.Thus,for example,the LGI address of the regulator in our example law BC(see Section3.5.1) would be regulator@.The mechanism by which an actor adopts a controller, thus forming an agent is discussed in Section3.9.We note here here an important distinction between an LGI-agent and the actor that animates it:whilethe behavior of an actor A x is completely unpredictable,as far as LGI is concerned,since is assume no knowledge of it,the behavior of the L-agent x could be quite predictable,as it is forced to conform to law L.We will,nevertheless,occasinaly use the term“agent”to refer to either of them,expecting the precise meaning to be made clear by the context.Wefinally point out that an L-agent may have a null actor.This may happen,in particular,when the actor A x of agent x dies,or becomes disconnected from its controller T x.This controller can continue to operate, responding to messages it receives from other agents—reflexively,as it were,according to law L.Moreover, the original actor,or somebody familiar with its password,can reconnect to such a reflexive agent.For more about this the reader is referred to Section4.7.3.2LGI communitiesWe define an L-community,C L(or simply C),to be the set of all agents that operates under a given LGI law L.Consequently,there is just one such community,for any given law.Such a community is open,in the following respects.First,there is no central admission procedure into C L:anybody who knows the text of law L,or has access to it,can adopt it,thus becoming a member of this community(although the law may require some credentials,to be this adopted).Second,the membership of an L-community is indeterminate, in that it can change dynamically,and its full membership cannot,in general,be known.This situation is somewhat analogous to the community of all-French-speaking-people,because anybody who learns French, anywere,becomes the member of this community.Yet,the membership of an L community can be regulated by employing central regulators,as we have shown in[28].Finally,note that members of different LGI communities may interoperate,subject to their respective laws;and that a member of a given L-community may interact with unregulated(non-LGI)computing pro-cesses,subject to law L(see Section4.4).Also,LGI-communities can be organized into hierarchies,as described in[1](such hierarchies are not being discussed in this version of the manual).1As we shall see,a single physical controller can serve several agents.3.3The Concept of Law Under LGI,and its StructureBroadly speaking,an LGI law L governs the interactions of the members of the L-community with eachother,and(as we shall see in Section4.4)with members of other LGI-communities.A law can be sensitive to the control-state of the interacting parties,and to digital certificates presented by them.A law can also limitthe set of agents that can operate under it,based on the certificates presented by them.The type of effects that a law may have on the community governed by it include:(a)blocking certain messages,or modifying and/or rerouting them;(b)mandating various side effects of the message-exchange,such as modification of the control-states of the sender and/or receiver of a message,and the emission of extra messages;and(c)causing agents to act sponaneously,when a previously imposed obligation comes due(see Section4.1),and without any explicit input from their actors.The general structure of such laws is discussedin this section.3.3.1On the Structure of Laws:The law of a community C is defined over a certain types of events occurring at members of C,mandatingthe effect that any such event should have—this mandate is called the ruling of the law for a given event.The events thus subject to LGI laws,called regulated events,include(among others):the sending and the arrivalof LGI-messages.The ruling of the law for a given regulated event—which may depend on the control-state of the agent where the event occurred(called,the“home agent”)—is a sequence of what we call primitive operations.These are operations that are carried out only if they are thus mandated by the law.The set of primitive operations of LGI include,among others,operations on the control-state of the home agent,and operations that cause messages to be forwarded and delivered.Technically,the law of a community is a function that returns a ruling for any possible regulated event that might occur at any one of its members.The ruling returned by the law is a possibly empty sequence ofprimitive operations,which is to be carried out at the home of the event in question.(By default,an empty ruling implies that the event in question has no consequences—such an event is effectively ignored.) More formally,an LGI law L is a function:r=L(e,s),e∈E,s∈S,r∈R(3.1) where E is the set of all possible regulated events,S is the set of all possible c-states,and R is the set of all possible rulings(i.e.,all possible sequences of primitive operations).This kind of function can be expressed in many languages.Our middleware currently provides two languages for expressing such law functions:they are somewhat restricted versions of Prolog[3],and ofJava.The Prolog-based language for writing laws is described in Section3.4.2,and is employed in most of this manual.The Java-based language is described in Section??.3.3.2The Control-StateAs we have already pointed out,the ruling of the law for an event that occurs at a given agent x may depend on what we call the control-state(or c-state,for short)of this agent,at the moment of occurance.This control state consists of three parts:1:The CS,also called the“law-based control-state”,because its semantics(i.e.,its effect on the ruling of the law,and its dynamic behavior)is defined by the law at hand,having no predefined semantics by the LGI model itself.Structurally,the CS is a bag of Prolog like terms,each of which can be defined,recursively,as follows:a term is either s or s(s1,...,s n),where s is an atomic symbol,and each s i is either an atomic symbol or a term(see[3]for more precise definion).Here are some exam-ples of such terms:manager,role(manager),name(joe,smith),name(first(joe),last(smith)).As we have said,the semantics of such terms can be defined by the law at hand.For example,under law BC introduced in Section3.5.1we will see how the term budget(B)represent the value B of the budget of an agent,although the LGI model itself knows nothing about such terms,or about budgets,for that matter.Finally,we point out that the CS is the most commonly used part of the c-state,and is,therfore sometimes carelessly called“control state”.2:The DCS,also called the“distinguished control-state”.The semantics of the DCS is at least partiallypre-defined by the LGI model.The structure of terms in the DCS is the same as that of CS terms,but thereis afixed,and small,set of such terms.All the terms of the DCS are listed in Section7.1.2,where their semantics is specified.3:The Context.This a set of variables available to the law,which provide information about the contextin which a given event occured.The most comminly used such variables are described below,the rest of themare discussed in Section7.1.3.•CS:This variable contain the current CS of the agent in question,represented as a list of terms(inunspecified order).•DCS:This variable contain the current DCS of the agent in question,represented as a list of terms(inunspecified order).•Msg:Contains the message being sent or received,available only during the evaluation of sent,arrived and submitted events—where it it is meaningful.•Peer:The peer for the current event:the recipient in the case of sent-event,and the sender in thecase of arrived event.•Self:The name of the home agent.•time(HH,MM,SS,MS):The local time at the home controller,HH is the hour,MM is the minute,SSis the second and MS is the milli-second.3.3.3Regulated EventsEvery event regulated by LGI occurs at a single agent—or,more precisely,at the controller of an agent—called the home of this event,and denoted below by h.We introduce here only three event-types,and only aspecial form for each.We start with the veryfirst event that occurs in the life of an agent.We then introducea pair of events that represent stages of the passing of an LGI-message.A convention:Events have a name identifying them,as well as a sequence of zero or more parameters.The symbols defining the parameters are of two types:(a)lower case symbols(like“par”below)wouldappear as is in the event itself,and(b)capitalized symbol(like“InitArg”below)is a variable,whoserange of values is described for each event.1.adopted(par(argList))—this is the veryfirst event in the life of every agents,which occuresright after a controller has been adopted to operate on behalf of some actor,under a given law.Typi-cally,this event is used by the law in question as an opportunity to perform some initializations.TheInitArgs parameter is a list of terms supplied by the adopting actor,to be interpreted by the adoptedcontroller,according to the law at hand.(The fullfledged version of this event can also accept andinterpret certificates,as discussed in Section4.3.)[[would have to be changed a bit if we decide to goon having just one possible signature]]<==n2.sent(H,M,Y)—this event occures when a message M sent by the actor of agent H to agent Y arrivesat the controller T H.The sender H is the home of this event.3.arrived(X,M,H)—this event occurs when an L-message M ostensibly sent by X,arrives at T H.Thereceiver H is the home of this event.(We say“ostensibly”,since the actual sender of this message maybe other than X,as the law under LGI has the power to misrepresent the sender—which is useful insome cases.)。
