遗嘱解释的三个问题

遗嘱解释以探求遗嘱人内心的主观意思为目的 ,遗嘱生效的形式要求与遗嘱解释活动相区分 ,从而一方面满足了遗嘱是要式法律行为的要求 ,另一方面也达到了遗嘱解释的目的。遗嘱解释的方法包括文义解释、整体解释、目的解释、历史解释、习惯解释、诚信解释等。补充遗嘱漏洞的常见方法是类推补充与法律推定补充。     

中国法学:技术、价值与知识——中国法学的三种基本态势

中国法学目前的现状分为三种,或者说有三个知识谱系。第一个谱系把法学理解为一门技术,这可能是当下中国部门法学一个主流的架构;第二个谱系把法学理解为一套价值体系,是一套价值;第三个知识谱系是把法学作为知识体系。这三个谱系的法学各有其价值和意义,这里我以一个编辑和教书人的双重身份,对中国当下的法学知识形态进行了阅读,阅读是个性化的,包含了对与错。我认为,中国的法学应该是多元的,它是中国法学繁荣的一个标志。     

Identification of a Buried Cadaver Based on Finger Ridge Characteristics of a Hand Protected by a Latex Glove

This paper presents the case of a cadaver buried in a pine grove, in loamy soil at a depth of about 1.8 m. The case is quite interesting due to the fact that one hand of the victim was bare and the other one was clad in a latex glove. In the laboratory, the severed hands were gently washed with water. The left palm exhibited signs of advanced decomposition. The ridges were visible only on the thumb. The gloved hand was found to be in much better condition. There were signs of saponification on the palm. Ridges on both the palm and all fingers were visible. The fingers of the right hand, palm prints, and the thumb of the left hand were successfully matched against a ten-print card. The match provided the police with a positive identification of the missing person.     

Fast gas chromatography of explosive compounds using a pulsed-discharge electron capture detector

The detection of a mixture of nine explosive compounds, including nitrate esters, nitroaromatics, and a nitramine in less than 140 sec is described. The new method employs a commercially available pulsed-discharge electron capture detector (PDECD) coupled with a microbore capillary gas chromatography (GC) column in a standard GC oven to achieve on-column detection limits between 5 and 72 fg for the nine explosives studied. The PDECD has the benefit that it uses a pulsed plasma to generate the standing electron current instead of a radioactive source. The fast separation time limits on-column degradation of the thermally labile compounds and decreases the peak widths, which results in larger peak intensities and a concomitant improvement in detection limits. The combination of short analysis time and low detection limits make this method a potential candidate for screening large numbers of samples that have been prepared using techniques such as liquid-liquid extraction or solid-phase microextraction.     

案件事实的形成及其法律判断

作为法律判断根据的案件事实区别于客观事实和规范事实,案件事实是在客观事实基础上依据规范的事实要件构筑的。案件事实及其判断既为法律规范所规定,又为社会生活实际所制约,兼有主客观共居的属性。案件审理中的事实认定与法律判断,不是两个可以简单分开的阶段或过程。案件事实和可得适用的法律的发现及其判断,几乎是同步进行并相互制约的。     

Sentences and prosecutors’ demands for aggravated drunk driving in Finland

ABSTRACT

Sentences and prosecutors’ demands for aggravated drunk driving are categorised into three classes: The sentence is more lenient than, is compatible with, or is harsher than the prosecutor’s demand. The probability of a sentence falling into one of the three ordered categories is explained by a cumulative logit model. The following circumstances affect the probability of a more lenient or harsher sentence, in decreasing order of importance: driving a truck, facing at least four counts, having a legal assistant, and being present in the trial. The hypothesis that factors known by the prosecutor, at the time of writing the demand, should not systematically affect sentences is refuted. The judges assess circumstances differently than the prosecutors. The prosecutors’ role is nevertheless prominent in the sense that the sentences follow, to a great extent, their demands. Notable gender effects of the actors in the courtroom are found.     

RELOCATION,RESEARCH, AND FORENSIC EVALUATION,PART I: EFFECTS OF RESIDENTIAL MOBILITY ON CHILDREN OF DIVORCE1

The issue of relocation presents courts and child custody evaluators with dilemmas on the issue of allowing a child to move with a parent to a new community and how to craft long‐distance parenting plans if relocation is allowed. The issue of the potential effects of residential moves on children of divorce has focused on the importance of the child–nonresidential parent relationship. The research literature on the effects of residential moves, or relocation, on children of divorce has not been fully integrated into the examination of this issue and its relevance for the child custody evaluation. The literature shows residential mobility is a general risk factor for children of divorce and this is a starting point for the custody evaluation, but it is not a basis for bias or a presumption against relocation. Predicting a child's adjustment to relocating or not relocating requires a careful and contextual investigation of the child and family circumstances. The research literature is a helpful frame of reference.     

澄清同一认定

同一认定理论的流行让人认为它是有用的,但它实际上是无用的。运用现代逻辑方法分析同一认定命题,在特定案件中,被寻找客体是限定摹状词,受审查客体是专名,单称的同一认定命题是一个含有限定摹状词的句子,它赋予个体一个性质。同一认定涉及的是个体识别问题,全称的同一认定命题实际上是不存在的。全称的同一认定命题是在语言形式上对全称理论命题的模仿,在逻辑上制造了混乱,对同一认定命题意义的澄清可以消除这种混乱,在刑事技术中恢复清晰的逻辑。     

抢劫犯罪死刑适用实证研究

在我国短时间内废除死刑并不现实,当务之急是规范死刑适用。抢劫犯罪的死刑主要适用于致人重伤、死亡的抢劫犯罪和其他情节极为恶劣的抢劫犯罪。在认定主要刑事责任人时应全面考察罪中、罪后、罪前等多方面情节。自首、立功等法定从宽处罚情节一般只及一罪;"先杀后抢"、"先抢后杀"的宣告刑应基本一致;在抢劫犯罪中一般不存在被害人有过错的情形;"赔偿免死"的前提是犯罪分子真诚悔罪。酌定从宽情节的适用亟待规范。     

多维度的选举权——基于霍菲尔德权利理论的一个分析

选举权包含多种法规范上的地位和关系，可看作一个有关选举的权利束。按照霍菲尔德的权利理论，可以从权力、自由、豁免和求四个维度来理解选举权。在权力维度上，选举权意味着对授权和代表关系的法律控制力，选民行使选举权的结果便是授权和代表关系的形成、变动和消灭。在自由维度上，选举权意味着个人有权自由地行使选举权力，不受国家、组织和他人的干涉。在豁免维度上，选举权意味着公民有不受约束的选举自由，国家没有不当干预选举自由的权力。求维度的选举权与其他维度的选举权紧密相连，它以选举权之权力、自由和豁免三素为主张对象，在一定意义上，其他维度的选举权只有与求维度的选举权结合起来，才能变得更有力、更具有可实现性。     

Suicidal hanging resulting in complete decapitation--forensic, radiological, and anthropological studies: a case report

The authors report a case of complete posthanging decapitation. The decapitated corpse lay against a pillar of a road bridge. The head had rolled 5 m from the trunk. The bridge was 7.2 m above the road level. The rope was 3.6 m long, its lower end was 3.6 m from the ground and its diameter was 10 mm. The noose used was a slip knot. Plain X-rays of the skull and cervical spine were obtained. The skull X-rays showed air in the meningeal spaces, in both lateral and third ventricles. The severance plane of the cervical spine was between the third and the fourth cervical vertebrae. No other cervical vertebral injuries were noted. At autopsy, the brain was macroscopically unremarkable except for air in the meningeal veins. The decapitation injuries of the head and the torso corresponded perfectly, without apparent loss of substance. The severance plane was confirmed. Dry bone study was carried out. Except for fractures of the extremities of the spinous processes of the second and third cervical vertebrae, no other bone injury of the spine was seen. The cervical vertebrae displayed numerous osteoarthritic lesions. The traditional hangman's fracture was not found. To the best of our knowledge, this is the first report of complete posthanging decapitation with a severance plane between the third and fourth cervical vertebrae.     

Age determination of blood spots in forensic medicine by force spectroscopy

We present a new tool for the estimation of the age of bloodstains, which could probably be used during forensic casework. For this, we used atomic force microscopy (AFM) for high-resolution imaging of erythrocytes in a blood sample and the detection of elasticity changes on a nanometer scale. For the analytic procedure we applied a fresh blood spot on a glass slide and started the AFM detection after drying of the blood drop. In a first step, an overview image was generated showing the presence of several red blood cells, which could easily be detected due to their typical "doughnut-like" appearance. The consecutively morphological investigations in a timeframe of 4 weeks could not show any alterations. Secondly, AFM was used to test the elasticity by recording force-distance curves. The measurements were performed immediately after drying, 1.5 h, 30 h and 31 days. The conditions were kept constant at room temperature (20 degrees C) and a humidity of 30%. The obtained elasticity parameters were plotted against a timeline and repeated several times. The elasticity pattern showed a decrease over time, which are most probably influenced by the alteration of the blood spot during the drying and coagulation process. The preliminary data demonstrates the capacity of this method to use it for development of calibration curves, which can be used for estimation of bloodstain ages during forensic investigations.     

Simulating transfer and persistence of a chemical marker powder for Lycopodium clavatum spores

In this research a chemical marker powder, based on Lycopodium clavatum spores, was studied to determine its transfer and persistence on a T-shirt. Such chemical marker powders are used to provide evidence that a person has handled a covertly marked object, such as a drug package. The powder was found to transfer readily between a marked item and the person handling it. The powder was found to persist on a T-shirt for up to 13 h; however, there was only a very small amount of powder remaining at this time. The rate of loss of the L. clavatum spores was found to follow a decay curve. The largest decrease in spores from the T-shirt was seen in the first 2 h after the marked item had been handled.     

A statistical approach to aid examiners in the forensic analysis of handwriting

We develop a statistical approach to model handwriting that accommodates all styles of writing (cursive, print, connected print). The goal is to compute a posterior probability of writership of a questioned document given a closed set of candidate writers. Such probabilistic statements can support examiner conclusions and enable a quantitative forensic evaluation of handwritten documents. Writing is treated as a sequence of disjoint graphical structures, which are extracted using an automated and open-source process. The graphs are grouped based on the similarity of their shapes through a K-means clustering template. A person's writing pattern can be characterized by the rate at which graphs are emitted to each cluster. The cluster memberships serve as data for a Bayesian hierarchical model with a mixture component. The rate of mixing between two parameters in the hierarchy indicates writing style.     

陶行知校长学的七个命题探析

陶行知校长学是陶行知结合具体的办学管校实践系统阐释校长工作的思想体系。它主要由七个命题构成：一、校长是学校的灵魂，务必有高尚的品行；二、校长要有使命感、责任心和同情心：三、校长要有自己独立的学校观；四、校长要敏于行，做一个行动的校长；五、校长要有创造意识和创造能力；六、校长要做民主的倡导者和领导者；七、校长工作是一项专门事业，需要也值得校长全身心地投入。     

论案件事实的“重建”方法

侦查阶段查明和认定的案件事实,是运用证据“重建”的法律中规定的案件事实,“重建”的案件事实是对客观事实的虚拟性再现。“重建”案件事实的方法主要有:搜集材料,识别案件的事实特征;分析案情,在思维上建构案件事实;查证核实,重新评价建构的案件事实;完善证据,确认案件事实。     

全国人大常委会在宪法实施中的创制行为及其界限——以“辽宁贿选案”为例

“辽宁贿选案”发生后,该省人大常委会无法正常开会履职。对此,全国人大常委会决定成立辽宁省十二届人大七次会议筹备组,代行该省人大常委会的部分职权。这被认为是宪法上的创制性安排。全国人大常委会的创制超出了宪法文本,不是宪法解释行为,也不是宪法续造行为,而是宪法建造行为。政治主体在面对宪法僵局时主动实施宪法,建造出民主集中制原则的具体内容和人民代表大会制度的新内涵,有效解决僵局并发展宪法。这并非孤例。全国人大常委会还曾在“总理辞职案”中进行过创制。创制需要符合一定的条件,前提是出现了必须创制的环境、没有可直接适用的宪法规则,方法是按照法定程序作出政治选择,形式是发布决定而非立法。创制具有宪法法律界限和合理性界限。政治主体要选择恰当的宪法原则和制度进行创制,所创制的内容要符合比例原则。创制是全国人大常委会掌握的一种新宪法工具,表明我国宪法实施具有政治主体与宪法互动的特征。     

Quantification of human mitochondrial DNA using synthesized DNA standards

Successful mitochondrial DNA (mtDNA) forensic analysis depends on sufficient quantity and quality of mtDNA. A real-time quantitative PCR assay was developed to assess such characteristics in a DNA sample, which utilizes a duplex, synthetic DNA to ensure optimal quality assurance and quality control. The assay's 105-base pair target sequence facilitates amplification of degraded DNA and is minimally homologous to nonhuman mtDNA. The primers and probe hybridize to a region that has relatively few sequence polymorphisms. The assay can also identify the presence of PCR inhibitors and thus indicate the need for sample repurification. The results show that the assay provides information down to 10 copies and provides a dynamic range spanning seven orders of magnitude. Additional experiments demonstrated that as few as 300 mtDNA copies resulted in successful hypervariable region amplification, information that permits sample conservation and optimized downstream PCR testing. The assay described is rapid, reliable, and robust.     

Suicidal Decapitation by Guillotine: Case Report and Review of the Literature

Abstract: Suicidal decapitation is seldom encountered in forensic medicine practice. This study reports the analysis of a suicide committed by a 31‐year‐old man with a self‐fabricated guillotine. The construction of the guillotine was very interesting and sophisticated. The guillotine‐like blade with additional weight was placed in a large metal frame. The movement of the blade was controlled by the frame rails. The steel blade was triggered by a tensioned rubber band after releasing the safety catch. The cause of death was immediate exsanguination after complete severance of the neck. The suicide motive was most likely emotional distress after the death of his father. In medico‐legal literature, there has been only one similar case of suicidal complete decapitation by a guillotine described.     

Environmental voluntary behaviour and crowding-out effects: regulation or laissez-faire?

The purpose of this paper is to investigate what the consequences are if environmental regulation in terms of a price mechanism (effluent charges) erodes moral motivation (crowding-out). The findings suggest that a regime relying on voluntarism can do better than a mandatory regime depending on the number of individuals being intrinsically motivated, degree of moral motivation, crowding effects, and whether or not ethical utilities are accounted for. The optimal tax scheme is a discriminatory one with rates that differ across moral and non-moral individuals. This tax-scheme induces the first-best solution when social costs are considered, while the same solution becomes unattainable for a social welfare function. The model provides a rationale for why governments sometimes rely on voluntary effort.