兩漢春秋折獄「原心定罪」的刑法理論

The Criminal Law Theory of the

"The line of demarcation between the concept of indirect expropria-tion requiring compensation and governmental regulatory measures not requiring compensation is difficult to draw. Several recent free trade agreements classify expropriation to include measures which have simi-lar effects; none, however, provides a clue as to when a regulatory measure is tantamount (or equivalent) to expropriation."" A measure tantamount (or equivalent) to expropriation"", then, could be any gov-ernment measure adopted for a legitimate purpose as part of the host state's police powers. The most controversial issue surrounding the po-lice power exception arises from the fact that neither international nor domestic law offers a comprehensive and widely accepted grounding for identifying its nature or scope. To date, two recent free trade agree-ments, the U.S.-Singapore and the U.S.-Chile Free Trade Agreements, provide specific guidance on how to determine whether or not the exer-cise of regulatory powers by a host country is to be regarded as a com-pensable expropriation. However, the debate has yet to be settled and is likely to continue as new cases and questions arise."