破解“同命不同价”难题的理论路径

现行人身损害赔偿的司法解释关于城乡差别的死亡赔偿标准引发了社会对"同命不同价"问题的质疑。现行人身损害赔偿的司法解释对死亡赔偿系采取"继承丧失说"解释我国有关法律规定中的死亡赔偿制度,认为死亡赔偿金是对未来收入损失的赔偿,其性质是财产损害赔偿,而不是精神损害赔偿,所以"继承丧失说"是导致"同命不同价"问题的理论根源。"死伤损害说"是批判包括"继承丧失说"在内的人身损害差额化赔偿的一种理论学说。该学说主张将死伤本身作为损害加以把握,将生命被剥夺本身作为一项概括的非财产损害,且对体现生命价值的非财产损害赔偿,应努力地实现类型化和定额化。摒弃死亡赔偿的"继承丧失说",转而以"死伤损害说"实行死亡赔偿金城乡一体的定型化,是破解"同命不同价"难题的理论路径。     

也谈“同命不同价”

目前的死亡赔偿金制度中的城乡差别招致了社会的广泛批评,产生了同命不同价的质疑。但由于死亡赔偿金制度是建立在继承丧失说的基础之上,所以目前死亡赔偿金制度的主要缺陷在于定额化的死亡赔偿金制度抹煞了个人之间的区别,从而违背了死亡赔偿金制度原有的填平损失的功能。     

我国死亡赔偿范围的分析

侵权致人死亡的,行为人应当依法承担赔偿责任。但是,赔偿义务人的责任应限制在何种范围却是一个问题。在我国法律中有多处对死亡赔偿范围进行了规定,但有不一致之处。同时对于死亡赔偿金的标准也产生了“同命不同价”之议。本文拟从侵权行为产生的法律关系着手,分析死者的近亲属所享有的赔偿请求权的来源,最终认为死亡赔偿金的请求权基础是死者的身体权、健康权受侵害而产生的损害赔偿请求权,是对死者劳动能力丧失的赔偿。这种请求权最终由死者的近亲属继承。而被扶养人生活费和精神损害赔偿则是对死者近亲属的赔偿。     

对"同命不同价"的反思.

死亡赔偿金从概念到性质历来就是人们争议的焦点。2005年的"同命不同价"案更是一石激起千层浪。何源等三少女因车祸遇难却遭遇"同命不同价"赔偿,经新闻媒体报道后,激起了社会上对"同命不同价"话题的大讨论。为什么同样的生命却因一纸户口而存在天壤之别?这就需要对死亡赔偿金进行界定。     

论我国侵权死亡赔偿制度——从“同命不同价”引发的法律思考

司法实务中经常出现的在相同或相类似的案件中,死亡的城镇居民和农村居民获得的赔偿数额大相近庭的现象,一直都是我国社会广泛关注并且备受诟病的对象.我国的死亡赔偿制度确实存在诸多不尽人意之处,但人们在追求生命平等和统一赔偿标准的同时,也对“同令不同价”的理解有一定偏差.本文试从死亡赔偿制度的本质、立法,以及我国户籍制度及城乡二元结构等方面简要分析社会对“同命不同价”误读的原因.     

“同命不同价”中的法与理——关于死亡赔偿金制度的反思

当下的死亡赔偿金制度招致了学术界和公众的广泛批评,死亡赔偿标准的不统一是主要原因,因此才有“同命不同价”的质疑。但是中国的死亡赔偿金制度是建立在继承损失说的基础之上,所以该制度的最主要的缺陷并不是在于标准的不统一,而是在于定额化的死亡赔偿金制度抹煞了个人之间的区别,从而违背了死亡赔偿金制度原有的填平损失的功能。解决死亡赔偿金制度所存在的问题,并不是制定一个统一的赔偿标准,而是要让死亡赔偿金能够体现被害人的收入状况,从而维护被害人的继承人的权利。     

"同命不同价"法律问题新探

我国现行的死亡赔偿金制度被贴上“同命不同价”的标签,饱受质疑。通过探讨死亡赔偿请求权的理论基础以及死亡赔偿金,引出死亡赔偿金制度的不足。对此,应当改革“死亡赔偿金”概念,取消“被扶养人生活费用”赔偿项目,加强赔偿标准的灵活性,注重法律实施效果。     

“同命同价”？——关于《侵权责任法》第17条的冷思考

近年来,关于死亡赔偿中“同命不同价”问题的讨论既见诸于媒体,也见诸于学术界。鉴于社会公众对死亡赔偿问题上存在着的“城乡差别赔偿”现象的极度不满,2009年12月26日通过的《侵权责任法》第17条规定“因同一侵权行为造成多人死亡的,可以以相同数额确定死亡赔偿金”,算是立法对此所作出的积极回应,此一立法回应也获得了舆论的好评。     

我国侵权死亡赔偿若干问题探究——我的“同命同价”观

自从相关法律对侵权死亡赔偿做出了规定之后,生命是否同价饱受争议.生命本无价,是人类得以生存的基础,是公民得以主张其他权利的前提.所以本文从分析生命权的内涵和外延、对同命不同价提出了几点看法的同时谈谈同命同价的合理性和必然性,希望生命能得到更好的尊重,法律对其得以进一步的保护.     

从"同命不同价"反思我国的死亡赔偿金制度

本文通过阐述死亡赔偿金的性质,指出我国死亡赔偿金制度的理论支撑,结合当前的实际情况,分析出我国死亡赔偿金制度存在的不足。通过比较定额化死亡赔偿金以及以收入损失为中心的死亡赔偿金优劣,抛开"同命同价"的幻想,正视事实上的"同命不同价",力求寻找解决我国死亡赔偿金制度存在问题的办法,更好地保护受害人的继承人的权利。     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

Immigration,intermarriage and the changing face of Europe in the post war period

In this article we compare the propensity to intermarry of various migrant groups and their children who settled in Germany, France, England, Belgium and the Netherlands in the post-war period, using a wide range of available statistical data. We try to explain different intermarriage patterns within the framework of Alba and Nee's assimilation theory and pay special attention to the role of religion, colour and colonial background. We therefore compare colonial with non colonial migrants and within these categories between groups with ‘European’ (Christian) and non-European (Islam, Hinduism) religions. First of all, religion appears to be an important variable. Migrants whose faith has no tradition in Western Europe intermarry at a much lower rate than those whose religious backgrounds correspond with those that are common in the country of settlement. The rate of ethnic endogamous marriages in Western Europe are highest in Hindu and Muslim communities, often regardless if they came as guest workers or colonial migrants. Whereas differences in religion diminish the propensity to intermarry, colour or ‘racial’ differences on the other hand seem to be less important. This is largely explained by the pre-migration socialisation. Furthermore, the paper argues that the attention to institutions, as rightly advocated by Richard Alba and Victor Nee, needs a more refined and layered elaboration. Institutions, often as barriers to intermarriage, do not only emanate from the receiving society, but also—be it less formalized—within migrant communities. Especially religions and family systems, but also organized nationalist feelings, can have a profound influence on how migrants think about endogamy. Finally, strong pressures to assimilate, often through institutionalized forms of discrimination and stigmatization, not only produce isolation and frustrate assimilation (with resulting low intermarriage rates), but can also stimulate assimilation by 'passing' mechanisms. These factors, together with a more comparative perspective, are not completely ignored in the new assimilation theory, but—as this study of Western European intermarriage patterns stresses—deserve to be included more systematically in historical and social scientist analyses.     

Turning a Madhyamaka Trick: Reply to Huntington

Huntington (2007); argues that recent commentators (Robinson, 1957; Hayes, 1994; Tillemans, 1999; Garfield and Priest, 2002) err in attributing to Nāgārjuna and Candrakīrti a commitment to rationality and to the use of argument, and that these commentators do violence to the Madhyamaka project by using rational reconstruction in their interpretation of Nāgārjuna’s and Candrakīrti’s texts. Huntington argues instead that mādhyamikas reject reasoning, distrust logic and do not offer arguments. He also argues that interpreters ought to recuse themselves from argument in order to be faithful to these texts. I demonstrate that he is wrong in all respects: Nāgārjuna and Candrakīrti deploy arguments, take themselves to do so, and even if they did not, we would be wise to do so in commenting on their texts.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

The Mūlāvidyā Controversy Among Advaita Vedāntins: was Śaṅkara Himself Responsible?

The concept of avidyā or ignorance is central to the Advaita Vedāntic position of Śȧnkara. The post-Śaṅkara Advaitins wrote sub-commentaries on the original texts of Śaṅkara with the intention of strengthening his views. Over the passage of time the views of these sub-commentators of Śaṅkara came to be regarded as representing the doctrine of Advaita particularly with regard to the concept of avidyā. Swami Satchidanandendra Saraswati, a scholar-monk of Holenarsipur, challenged the accepted tradition through the publication of his work Mūlāvidyānirāsaḥ, particularly with regard to the avidyādoctrine. It was his contention that the post-Śaṅkara commentators brought their own innovations particularly on the nature of avidyā. This was the idea of mūlāvidyā or ‘root ignorance’, a positive entity which is the material cause of the phenomenal world. Saraswati argues that such an idea of mūlāvidyā is not to be found in the bhāṣyas (commentaries) of Śaṅkara and is foisted upon Śaṅkara. This paper attempts to show that although Śaṅkara may not have explicitly favoured such a view of mūlāvidyā, his lack of clarity on the nature of avidyā left enough scope for the post-Śaṅkara commentators to take such a position on avidyā.     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.     

Illumination,Imagination, Creativity: Rājaśekhara,Kuntaka, and Jagannātha on <Emphasis Type="Italic">Pratibhā</Emphasis>

Sanskrit poeticians make the visionary faculty of pratibhā a necessary part of the professional poet’s make-up. The term has a pre-history in Bhartṛhari’s linguistic metaphysics, where it is used to explain the unitary perception of meaning. This essay examines the relation between pratibhā and possible theories of the imagination, with a focus on three unusual theoreticians—Rājaśekhara, Kuntaka, and Jagannātha Paṇḍita. Rājaśekhara offers an analysis of pratibhā that is heavily interactive, requiring the discerning presence of the bhāvaka listener or critic; he also positions pratibhā in relation to Bildung (vyutpatti) and practice. For Kuntaka, pratibhā, never an ex nihilo creation by a poet, serves as the basis for the peculiar forms of intensified insight and experience that constitute poetry; these may also involve the creative scrambling and re-articulation of the object in terms of its systemic composition. At times, Kuntaka’s pratibhā comes close to a strong notion of imaginative process. But the full-fledged thematization of the imagination, and of pratibhā as its support and mechanism, is best seen in the seventeenth-century debates preserved for us by Jagannātha. A link is suggested between the discourse of poetic imagination in Jagannātha and similar themes that turn up in Indo-Persian poets such as Bedil.     

Preventing Homelessness for System‐Involved Youth

Too many youth and young adults find themselves on the streets, couch‐surfing with friends, in emergency shelters or worse, after exiting the child welfare and juvenile justice systems. In some circumstances, youth have had court hearings until their exit from the legal system, but those hearings have not focused on long‐range plans of youth and emergencies youth may encounter. In other circumstances, there has been little or no planning prior to discharge, especially for young people who leave the juvenile justice system. Courts can and should prevent, alleviate or end youth homelessness for youth who appear before them through strategies that are enumerated in the recently‐passed NCJFCJ resolution. This article expounds on three of these strategies – coordinating transition and re‐entry plans, insisting on effective legal representation of youth, and utilizing sound judicial leadership. It also describes the concurrent efforts of the Coalition for Juvenile Justice and the American Bar Association's Homeless Youth Legal Network to remove legal barriers and improve outcomes for youth and young adults experiencing homelessness.     

Best practices for structuring a family court parenting plan evaluation under the 2022 AFCC Guidelines

Evaluation appointment orders provide enforceable scaffolding for conduct of family court parenting plan evaluations, and use of the evaluator's reports, feedback, file, and testimony. Unlike a contract, a stipulated or adjudicated appointment order is directly enforceable by the family court. It unambiguously positions the evaluator as the family court's appointee – answerable directly to the court and, in some jurisdictions, protected by quasi-judicial immunity from damages claims. A well-crafted appointment order governs the roles and expectations of the court, the evaluator, the parties, the lawyers, and the collateral witnesses. An appointment order mandates the legal duties, rights, powers, and responsibilities of the professionals, the parties, and the collateral witnesses. At minimum, an appointment order articulates the legal basis for the appointment, the purpose and scope of the evaluation, compensation of evaluator, and the duty of the parties to participate in the process. A written evaluation protocol or procedures statement discloses in advance the methods of investigation and assessment that the evaluator intends to use. Together, the appointment order and written protocol help the evaluator, lawyers, parents, and judge manage the complexity of the evaluation process.