论“本质错误”——以罗马法为中心

在罗马法中,本质错误与身份错误、行为性质的错误、标的物错误并称为使行为无效的四种实质性错误。本质错误与材料错误相关又不等同于材料错误。本质错误的内涵见于D.18,1,9,2中的"醋为酒卖"案,是在社会经济功能影响下的标的物之内在特性发生错误。本质错误的外延见于"古杯"案及D.18,1,11、D.18,1,14等文本,涵涉了大部分的材料错误和性别错误,并可以作为一种兜底条款适用于那些对诸如艺术品价值、作者发生错误的情形。本质错误在近代演化为法国法的"实质错误"、意大利法的"本质上的错误"、瑞士法的"重大错误"、德国法和我国台湾地区法的"性质错误",在赋予法官自由裁量权的功能上,它们和中国大陆民法的错误制度殊途同归。     

Sequence polymorphisms at the DXS6789, DXS8377 and DXS101 loci in three Asian populations

Sequence analyses of X-chromosomal short tandem repeats, DXS6789, DXS8377 and DXS101 were performed for representatives of 3 Asian populations: 130 Japanese, 61 Bangladeshi and 89 Indonesian males. At DXS6789, the sequence polymorphism was found in 7 alleles in the Japanese, 3 in the Bangladeshis and 3 in the Indonesians. At DXS8377, the sequence polymorphism was found in 13 alleles in the Japanese, 9 in the Bangladeshis and in all alleles identified in the Indonesians. At DXS101, the sequence polymorphism was found in 7 alleles in the Japanese, 9 in the Bangladeshis and 8 in the Indonesians. Because sequence polymorphisms were found in most of the alleles at the DXS6789, DXS8377 and DXS101 loci, it was concluded that sequencing was essential for identifying the alleles at these loci in all 3 Asian populations.     

物权法定原则

物权法定原则决定了物权法的基本性质与特征,也严格地限制了当事人在创设新型物权、改变既有物权之内容等方面的意思自由。物权法定原则的内涵是指物权的种类、内容、效力以及公示方法由法律规定,原则上不能由法律之外的规范性文件进行规定,也不能允许当事人自由创设物权的种类以及确定物权的内容、效力和公示方法。作者比较了物权法定模式的表述方式和基本功能,并认为我国物权法中物权法定中的“法”应当被主要限定为法律;司法解释应当具有一定的创设物权的功能;判例不能创设物权。当事人关于物权设定的约定违反物权法定原则的法律后果,应当根据不同的情况来确定。     

Public Beliefs in the Causes of Wealth and Poverty and Legitimization of Inequalities in Russia and Estonia

The article analyzes the attributions of the causes of poverty and wealth in Russia and Estonia in 1991 and 1996 and their determinants. Among the latter are the perceived actual justice of the society, the perceived size of the middle class, and the personal position in the system of inequalities. Despite the economic hardships and a rise in inequalities in both countries, individualistic explanations of wealth and poverty have increased over the 5 years between the surveys. At the same time respondents in both countries demonstrated a growing awareness of the importance of starting positions and connections to achieve wealth. The perceived middle class has a significant effect on attributions of poverty but not on wealth. Russians in Estonia have a particular bias against wealth, whereas non-Russians in Russia are more likely to justify wealth on the basis of individual merit. Explanations of poverty and wealth in Estonia are more rooted in the factors of socialization (age, education, and gender), whereas in Russia they are more rooted in the changes in the family financial circumstances between 1991 and 1996. There was a general increase in support for government intervention in distribution in both countries.     

Fatal intoxications in the Nordic countries. A forensic toxicological study with special reference to young drug addicts

Fatal intoxications in the 15-34 age group in the five Nordic countries during the years 1984 and 1985 (Sweden only in 1984) were investigated. The known drug addicts were studied separately. The highest incidence of intoxications, calculated per 10(5) population, was found in Finland (11.3), followed by Denmark (10.3), Sweden (8.5), Iceland (7.2) and Norway (6.6). The percentage of intoxications caused by drugs was 92 in Denmark, 71 in Norway, 66 in Sweden, 50 in Finland and 17 in Iceland. Ethanol intoxications were seen 5-7 and 2-3 times as frequently in Finland and in Iceland, respectively, than in the other three countries. Carbon monoxide intoxications accounted for two-thirds of all fatal intoxications in Iceland. Drug addicts accounted for 62% of all fatal intoxications in the Danish material. The corresponding figures were 33% in the Norwegian, 16% in the Swedish and 5% in the Finnish material. No deaths in drug addicts were found in Iceland. Most drug addicts in Denmark, Norway and Sweden died of hard drugs and most in Norway and Sweden, from heroin or morphine, whereas in Denmark other strong analgesics, such as methadone, dextropropoxyphene and ketobemidone, accounted for 40% of all hard-drug-related fatal intoxications. To a certain extent the results reflect differences in the legal autopsy routines in the various Nordic countries. However, the ascertainment of drug addicts is assumed to be near-complete in each country.     

对物诉讼与我国的船舶扣押法律制度

对物诉讼源于罗马法,却只在英国得到延续,并在其海事诉讼中得到巨大发展.随着英国殖民者将对物诉讼制度带到其殖民属地,移植法律与本地法律互相作用,逐渐发展出英美法系各国目前各具特色的扣船制度,其中最有代表性的莫过于英美两国的对物诉讼制度.我国的扣船制度既坚持了对人诉讼的传统,又大胆吸收了对物诉讼制度的合理内涵,反映了国际船舶扣押立法中对人诉讼与对物诉讼相互融合的良性发展态势.     

Carbon monoxide-related deaths in a metropolitan county in the USA: an 11-year study

Carbon monoxide (CO) poisoning as a cause of death is well documented in industrialized countries. The objective of this study was to compare demographic data in deaths due to accidents (in fires) and suicides in the same population between 1988 and 1998. Furthermore, the potential effect of a community wide education effort regarding safety in the home was assessed. Postmortem reports were reviewed for all deaths examined at the Office of the Cuyahoga County Coroner in Cleveland, OH, USA. During the study period, there were 209 accidental deaths due to fires in the home (6.5% of all accidents in the home) and 182 CO deaths by suicide (9.8% of all suicides). Demographic characteristics of the two groups differed: while males represented the majority of cases in both groups (55% of accidents, 70% suicides), race specific death rates were higher for whites than blacks (18/100,000 white, 3/100,000 black) in suicides compared with 29/100,000 deaths for blacks and 11/100,000 for whites in accidental cases. Fire deaths were prevalent in the young (0-9 years) and old (>60) whereas in the suicide group the age specific death rate was highest for those over 70 years. The majority of fire deaths occurred in the city of Cleveland but suicides were prevalent in the suburbs. More fire deaths occurred in December than any other month whereas more suicides occurred in April. In 1992, there was a community wide effort to provide free smoke detectors to residents in Cleveland. In 1992, there were 4.2/100,000 fire deaths in the city. This decreased to 0.6/100,000 in 1996, increased to 1.2/100,000 in 1997 followed by a decrease to 0.8/100,000 in 1998. This suggested that the program may have aided in decreasing these types of deaths. Deaths due to fires in the suburbs were <1/100,000 throughout the study period.     

Gender differences in the dispersal of children in northern Sweden and the northern USA in 1850

In the course of time families disperse and kin relationships change. In this study gender differences in spatial dispersion of adult children from their fathers were investigated in two areas of the world in 1850: the Skellefteå region in northern Sweden and the northern part of the USA, both largely rural populations. The results from the Skellefteå region where data on both genders were available were used to estimate gender differences among a native born population in the northern USA where women were often not followed in the sources after marriage. Most adult children resided in the same place as their fathers, but the distances separating relatives were greater in the USA. However, the proportion of adult sons living in the same locality as their fathers was the same in both. More daughters than sons were located elsewhere in Skellefteå and probably also in the USA. Although sisters in Skellefteå joined each other in places separate from their parents, men lived in patrilineal clusters to a greater extent than women due, in part, to patrilineal inheritance and virilocal marriages. Various reasons for these patterns are discussed and their implications for kin networks discussed.     

Confidence in the police in Latin America

The study of confidence in the police in Latin America is rare, partially for lack of interest and partially for lack of reliable data. Social, economic, and political instability in those countries also contributes to the problem. Relying on data from the World Values Surveys 1995-1997, the current research proposed a theory of the police in transitional societies and reported the results of analyses of confidence in the police in nine countries of Latin America. The levels of confidence in the police in the nine Latin American nations were compared with that of the U.S. The inclusion of a heterogeneous set of control variables in the multivariate analysis yielded several consistent predictors of confidence in the police. Similar to the findings in the U.S., confidence in the police in Latin America was part of the broader attitude complex. Different from the findings in the U.S., confidence in the police was positively related to one's employment status and religiosity, and negatively to income.     

An Exploration of the Historical Background of Criminal Record Checking in the United Kingdom: From the Eighteenth to the Twenty-First Century

Potentially preventable crimes resulting from failures in criminal record checking and recording emerged as problematic in the eighteenth century and have continued up until the present day. Ranging from child abuse to murders, reports suggest that if criminal records had been evident, in some cases unlawful acts may have been prohibited. The historical background to the emergence of criminal record collection and checking in the United Kingdom (UK) is analysed from the mid-eighteenth century. This time period is chosen because it marks a pivotal change in the treatment of criminals, crimes and the start of the policing system in the United Kingdom. As a result of growing societal concerns over public safety and changes in the legal system, the approach in which criminal records have been utilised in employment decision-making has evolved most rapidly in the late twentieth and early twenty-first centuries. The recording, storing and sharing of criminal record information has received most attention only in the past decade. Developments in recruitment-vetting procedures for the protection of vulnerable persons have only emerged in the last 50 years to manage such crimes in the United Kingdom. In 2002 the Criminal Records Bureau (CRB) was established in the United Kingdom to ensure safer recruitment decisions could be made in society. However, the question remains whether or not these practices have been and are effective.     

Recent Trends in Sentencing Policies in the Netherlands

This article considers sentencing in the Netherlands and in particular the changes that have been introduced since the 1980s, both in the adult and in the juvenile justice system. Several questions will be treated in the article. Sentencing in the Netherlands in the last two decades is analysed and some explanations for the changing trends are presented. Results indicate that the Netherlands is following a general pattern, prevalent in Europe and the US, of more punitive and repressive punishment. Also, the extent to which new sentencing options, such as community sanctions have made a difference to the upward trend in imprisonment, will be analysed. In an effort to reduce the costs of the system new policies are being developed, introducing both 'front door' and 'back door' varieties in sentencing. These will lead to some important and radical changes in the criminal justice system.     

论法院调解保密原则

调解保密性是现代社会法院调解程序发展的内在要求。调解保密性包括调解程序保密性和调解信息保密性。我国关于调解保密性的规定主要关注调解程序的保密性,但调解保密性更要求调解信息保密性。明确调解信息保密性的含义,合理规制＂调解保密信息＂的范围,建构多元化的调解保密适用方式,是多元化纠纷解决机制稳健运行的重要前提。     

Reconsideration of the sequence of rigor mortis through postmortem changes in adenosine nucleotides and lactic acid in different rat muscles

We examined the changes in adenosine triphosphate (ATP), lactic acid, adenosine diphosphate (ADP) and adenosine monophosphate (AMP) in five different rat muscles after death. Rigor mortis has been thought to occur simultaneously in dead muscles and hence to start in small muscles sooner than in large muscles. In this study we found that the rate of decrease in ATP was significantly different in each muscle. The greatest drop in ATP was observed in the masseter muscle. These findings contradict the conventional theory of rigor mortis. Similarly, the rates of change in ADP and lactic acid, which are thought to be related to the consumption or production of ATP, were different in each muscle. However, the rate of change of AMP was the same in each muscle.     

Quantitative analysis of amplifiable DNA in tissues exposed to various environments using competitive PCR assays

Competitive PCR assays were established for the mitochondrial DNA hypervariable region I and the human amelogenin locus. Using these assays, the copy numbers of DNA participating in PCR (amplifiable DNA) were quantified in tissues exposed to different environments. Human ribs, skin and nails were left in three exposure conditions (in the open air, in soil and in water). The amounts of amplifiable DNA in these tissues were quantified during a time period of up to two months. The amount of amplifiable DNA was well preserved in hard tissues (ribs and nails) regardless of the exposure conditions, whereas the soft tissues immersed in water showed a rapid decrease in amplifiable DNA. Strong PCR inhibition was observed in the DNA extracts obtained from buried bones. This phenomenon was clearly identified from an amplification failure of the internal standards in the competitive PCR. A preliminary examination to identify the PCR inhibitor suggested that the soil itself contributed to the inhibition. In addition, the amounts of amplifiable DNA in case samples were also investigated.     

Pitfalls of Computed Tomography 3D Reconstruction Models in Cranial Nonmetric Analysis*

Many studies in the literature have highlighted the utility of virtual 3D databanks as a substitute for real skeletal collections and the important application of radiological records in personal identification. However, none have investigated the accuracy of virtual material compared to skeletal remains in nonmetric variant analysis using 3D models. The present study investigates the accuracy of 20 computed tomography (CT) 3D reconstruction models compared to the real crania, focusing on the quality of the reproduction of the real crania and the possibility to detect 29 dental/cranial morphological variations in 3D images. An interobserver analysis was performed to evaluate trait identification, number, position, and shape. Results demonstrate a false bone loss in 3D models in some cranial regions, specifically the maxillary and occipital bones in 85% and 20% of the samples. Additional analyses revealed several difficulties in the detection of cranial nonmetric traits in 3D models, resulting in incorrect identification in circa 70% of the traits. In particular, pitfalls included the detection of erroneous position, error in presence/absence rates, in number, and in shape. The lowest percentages of correct evaluations were found in traits localized in the lateral side of the cranium and for the infraorbital suture, mastoid foramen, and crenulation. The present study highlights important pitfalls in CT scan when compared with the real crania for nonmetric analysis. This may have crucial consequences in cases where 3D databanks are used as a source of reference population data for nonmetric traits and pathologies and during bone-CT comparisons for identification purposes.     

急性心肌缺血再灌注时Bax的免疫组织化学研究

目的　为心肌缺血 /再灌注损伤所致心性猝死的法医学诊断提供形态学依据 ,方法运用免疫组织化学方法 ,研究Bax蛋白在心肌组织中不同区域的表达。　结果　对照组正常心肌组织无Bax蛋白表达。Bax蛋白再灌注 0 .5h后即可在缺血区域表达 ,且表达主要在心肌内层。再灌注 1h后可观察到Bax蛋白不仅表达于心肌内层且已经扩展至心肌的全层。再灌注 2h发现心肌外层表达明显强于心肌内层 ,随着再灌注时间的延长可以发现Bax蛋白的表达逐渐减弱。　结论　在急性心肌缺血再灌注中 ,Bax基因对心肌细胞凋亡的发生有着重要的作用 ,且可以作为心肌缺血再灌注的早期诊断提供一项辅助诊断依据。     

Petechial Hemorrhages and Ethanol in Deaths from Intoxication

Petechiae in conjunctivae and in the palpebrae/skin of the eyelids are of particular interest for the forensic pathologist, because of their association with pressure on the neck. They have been described in the eyelids of intoxicated persons both in case reports and in text books of forensic pathology. We studied 590 deaths caused by intoxication, and 75 had petechiae either in the conjunctivae, the eyelids, or in both locations. We examined the influence of drugs and ethanol on the location of the petechial hemorrhages in these deaths. Deaths with ethanol in blood and in urine/vitreous humor more often had petechiae in both locations than those without. This association was statistically significant, independent of body position and livor mortis. No association between the location of petechiae, medicinal drugs, or narcotics was found. These results suggest that ethanol may contribute to the development of petechial hemorrhages in deaths from intoxication.     

Sudden infant death syndrome: Histological studies on adrenal gland and kidney

Histological observations were made on the adrenal glands and kidneys in ten cases of sudden infant death syndrome (SIDS). The amount of fetal cortex was excessive in the adrenal glands and many glomeruli of fetal form were observed in the kidneys. These findings suggest that the adrenal glands and the kidneys in SIDS cases are more or less immature in development. The immature development in these organs, especially in the adrenal glands, was considered to play a role in the cardiac or respiratory mechanisms in SIDS.     

论过失犯形态的原因自由行为

相对于认定故意犯形态的原因自由行为有诸多疑难而言,在过失犯形态的原因自由行为之中承认原因行为的实行行为性并没有太多争议。但无论如何,过失犯形态的原因自由行为至少在表象上有别于一般的过失犯,其特点就在于可以划分为原因行为和结果行为这两个阶段,而在结果行为阶段又的确是丧失了责任能力甚至是行为能力。相关判例印证了在自陷无责的情形中构成要件模式的正确性,即原因自由行为实质上并不是一种需要特殊归责的构造,而只是一种现象上有独特之处,但完全可以被包括在一般的归责形态(无论是过失犯还是故意犯)之中的说明形式(说明实行行为到底在何处)而已。要成立过失犯形态的原因自由行为,关键在于如何在具体情况下认定行为人的过失心理,它可能有三种表现形式。     

How unique is the Western European marriage pattern?: A comparison of nuptiality in historical Europe and the contemporary Arab world

In this article a comparison is drawn between the historical Western European marriage pattern (WEMP), and more recent trends in nuptiality in Arab countries. This comparison makes clear that marriage behavior in the present-day Arab world shows striking similarities to nuptiality patterns which have been described by Hajnal and adherents as typically Western European. Due to a combination of economic hardship, ever growing costs in the marriage ceremony, prolonged education and the emancipation of women, people in the Arab world have started to marry at ever higher ages during the past decades. Moreover, there are indications that universal marriage is in decline. Just as Western European couples in the nineteenth century had to spend years of saving in order to meet the economic requirements for marriage, young couples in today's Arab world have to postpone marriage as they are only at a more advanced age able to bear the economic burden involved in getting married. Striking is also the fact that marriage restriction in both societies started at a moment when the social and legal position of women was improving (in late Medieval Western Europe and today in the Arab world). However, in some ways the historical Western European marriage pattern differs from the contemporary Arab pattern. No other marriage regime has been able to completely reduce fertility and balance population growth to economic development. Whereas population growth in pre-twentieth century Europe was only restricted by nuptiality control, demographic expansion in present day Arab society is also restricted by modern family planning. Declining nuptiality in the Arab world can however not, as some might assume, be put under the header of the Second Demographic Transition observed in Western societies, from the 1960s on. After all, until today, a rise in cohabitation and extra-marital births has not occured in the Arab world.