论诉讼诈骗及其刑法评价

诉讼诈骗是指行为人以非法占有他人财物为目的,以提起民事诉讼为手段,利用法院的错误判决,骗取数额较大的公私财物的行为。诉讼诈骗尽管具有诈骗罪的某些特征,但认定其构成诈骗罪是不妥的。诉讼诈骗的行为属性应从其侵犯法院审判秩序的角度分析才是恰当的。现行刑法典只能对部分诉讼诈骗行为进行评价,其余无法定罪的诉讼诈骗行为的犯罪化问题,只能留给立法解决。     

The legal status of clinical and ethics policies, codes, and guidelines in medical practice and research

This article examines the legal status of "soft law" in the fields of medicine and medical research. Many areas of clinical practice and research involve complex and rapidly changing issues for which the law provides no guidance. Instead, guidance for physicians and researchers comes from what has often been called "soft law"--non-legislative, non-regulatory sources, such as ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. This article traces the evolution of these "soft law" instruments: how they are created, how they are adopted within the professional community, and how they become accepted by the courts. It studies the relationship between soft law instruments and the courts. It includes an examination of the approaches to judicial analysis used by the courts in theory and in practice. The authors then examine the jurisprudence to see how courts will adopt professional norms as the legal standard of care in some circumstances and not others. They consider the legal concerns and ethical issues surrounding the weight attached to professional practices and norms in law. The authors demonstrate how practices and policies that guide professional conduct may ultimately bear weight as norms recognizable and enforceable within the legal sphere.     

论医疗机构对原因不明伤害或死亡病例的报警义务

在涉及刑事犯罪的案件中,警方尽早介入并利用其自身专业技能进行侦查对于案件的早日侦破具有举足轻重的作用。但在法律实践中,有许多案件因为没有及时报警,致使被害者遭受了不应有的损失,同时也会放纵犯罪分子的犯罪行为,加大了其给社会带来的危害性。医疗机构为社会特殊主体,明确其在诊疗过程中对于原因不明伤害或死亡患者是否具有报警义务对于减少医疗纠纷、减轻患者损失、降低社会危险性具有重要意义。在目前我国立法尚未对报警义务的主体加以普遍规定的情形下,本文立足于法律所保护和追求的社会利益,在现行立法的基础上对医疗机构是否具有报警义务进行了分析。     

A Court as the Process of Signification: Legal Semiotics of the International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons

The International Court of Justice (ICJ) advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order (or international law) and the political order (or state practice). The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts (1) “permitted” and “prohibited,” (2) “threat of use” and “possession of the weapon,” and (3) “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of law.     

Sexual abuse by psychotherapists: the call for a uniform criminal statute.

Recent surveys show an alarming rate of sexual exploitation of patients by psychotherapists. As such conduct often falls outside the scope of rape, which allows a defense of consent, the psychotherapist is not prosecuted. Although all sexual contact between therapist and patient is prohibited by codes of professional ethics, the licensing boards that enforce these codes do not possess adequate power to deter this behavior. Further, professional review boards have absolutely no authority over unlicensed therapists who sexually abuse their patients. As a result, licensed therapists who have been censured in one state may practice as unlicensed therapists in another state and continue to sexually abuse patients. The only effective deterrent would be a uniform statute, adopted in all states, criminalizing this specific abuse of the unique therapist-patient relationship. Such a statute should include unlicensed therapists as potential offenders and consent to sexual contact should not be a defense. The statute also should provide for enhanced efforts to inform and protect victims. This Note first examines six of the nine criminal statutes that currently exist in order to show the full range of provisions presently in force to deter this conduct. This Note then proposes model provisions for a uniform statute.     

关于刑事诉讼法修改中有关司法鉴定问题的思考

由省级人民政府指定的医院进行司法鉴定,不仅限制了司法鉴定机构的执业权利,造成法律适用上的混乱,而且在实践中也不具有可行性。此外,对于鉴定人无正当理由拒绝出庭作证的法律责任,无论是从法院与鉴定人的关系,鉴定人强制出庭作证来看,还是从司法拘留的适用性质来看,都不应当强制鉴定人出庭。上述是刑事诉讼法中有关司法鉴定的两个重要问题,应当借此次修改的机会,完善刑事诉讼领域的司法鉴定制度,促进法律协调统一。     

刑事强制医疗客观要件的反思与重构

强制医疗的客观要件包括行为条件和侵害法益条件两方面。通过对司法实践的考察发现:强制医疗的客观要件不仅存在放任精神病人继续实施危害社会行为的风险,而且还存在不规范适用的情况。出现上述问题的根源在于强制医疗的客观要件自身具有不合理性,只有改革强制医疗的客观要件,才能够化解风险、规范司法适用。不限制危害行为和侵害法益是国外强制医疗客观要件的普遍模式。我国应当将"实施的行为的社会危害性已经达到犯罪程度"作为强制医疗的客观要件,同时有必要丰富强制医疗的执行方式,在住院治疗之外,增加门诊治疗。     

基本医疗保险服务协议的法律性质探讨

基本医疗保险服务协议是规范社会保险经办机构和定点医疗机构、定点零售药店双方行为的行为准则和重要法律依据,然而,对其法律性质的认定,学术界和实务界一直存有争议。行政私法合同是行政主体运用私法合同达致行政公法目的‘的手段,基本医疗保险服务协议符合行政私法合同的特征和本质属性,因此,基本医疗保险服务协议的法律性质是行政私法合同。     

社会科学证据在美国的发展及其启示

我国的民事、行政法庭中已经出现了社会研究报告这种全新的证据形式,它实际上是社会科学证据的典型代表。社会科学证据已经在美国经历了超过百年的发展历史,最早可以追溯到上世纪初出现的"布兰代斯辩论摘要"。在经历了司法实践多年的考验之后,社会科学证据终于从上世纪70年代之后在美国获得了长足发展。如今,社会科学证据在美国的法庭中已得到了广泛的应用。我国可以学习美国的经验,将社会科学证据放在科学证据的框架之下进行研究和应用,这将成为我国证据法学理论的一个重要突破。基于当前的司法证明实践,应当对社会科学证据的证据属性、证据形式、公证问题、审查认定规则等重点问题加强研究。     

非法行医案件中行政执法与刑事司法的衔接——兼评最高人民法院有关司法解释

我国对非法行医分别在刑法和行政法中做出规定,二者概念及内涵的本质区别是行政违法与犯罪。非法行医案件中行政违法与犯罪的界限,应从主体和客观方面予以准确界分。为了非法行医案件中行政执法与刑事司法的有效衔接,应完善案件移送与接受机制,规范案件移送中的证据转化,厘清行政处罚与刑罚的关系。最高人民法院的有关司法解释量化了非法行医中违法与犯罪的界限,有利于司法实践,但仍有不足之处。     

Unscientific health practice and disciplinary and consumer protection litigation

Evidence-based health care is expected of their practitioners by contemporary health professions. This requires health care to have a foundation in scholarly literature and to have a scientifically valid methodology. However, there are many instances of registered and unregistered practitioners either providing assessment and treatment that does not conform to such requirements or making representations about likely efficacy that are unjustifiable by reference to peer-reviewed clinical knowledge. Sometimes such conduct is predatory and deliberately exploitative; other times it is simply misconceived on the part of practitioners who regard themselves as medical pioneers. This editorial situates such conduct within unscientific and unorthodox health practice. It surveys recent consumer protection and disciplinary decisions to evaluate the role of the law in regulating such conduct. It argues in favour of an assertive legal response to protect vulnerable patients or potential patients against forms of treatment and promises of outcomes that are unscientific and deceptive.     

The standard of care and expert evidence of accepted practice in medical negligence

The topic of this article is the perennial issue in medical negligence litigation of various kinds of the extent to which it is a defence to a charge of lack of reasonable care that the defendant's conduct complied with accepted professional practice. Recent English interpretations of the controversial Bolam principle are considered, before the current approach of the courts and the Health and Disability Commissioner in New Zealand is described, using case illustrations. In New Zealand expert medical opinion of accepted practice is relevant to, but not conclusive of, the standard of care. There is, however, more freedom than pursuant to the current English approach for a decision-maker to reject expert opinion of accepted practice, because he or she is able to examine not just the logical defensibility of the practice but its overall reasonableness, including where the practice involved a risk assessment on a matter of clinical judgment. A decision to reject expert opinion of accepted practice is more readily made in areas which do not involve assessment, diagnosis and treatment.     

What you see may not be what you get: beware of patients bearing gifts

The professional boundaries of practice for nurses and midwives are specifically addressed in professional codes of ethics and conduct, employer policies and guidelines and more frequently in the professional literature. There are many forms in which boundary violations and boundary crossings may present or circumstances in which they may occur. This column considers a recent case (involving a bequest to a registered nurse under a will) which came before the Queensland Nursing Tribunal. The decisions of the tribunal, the District Court and the Court of Appeal provide practical guidance to nurses and midwives on the importance of establishing and maintaining the professional boundaries essential to the therapeutic relationship with their patients and clients.     

A review of Anglo-American forensic professional codes of ethics with considerations for code design

Continuing instances of ethical misconduct and recent advances in the practice of forensic science, the latter reflected by increased growth and professionalism, along with heightening public scrutiny, require that the profession be clear, current, and forthright about its core values. A way of expressing these values is through the codes of ethics of its professional membership organizations. Codes of ethics/conduct from 14 Anglo-American professional forensic membership organizations are reviewed for their clarity, construction, cogency, and the normative form of their provisions. Ethical precepts from the forensic codes reviewed are organized, in summary fashion, by obligation form and application context. Functions that professional codes have served in other professions are described. The codes are found to vary considerably. Some provisions are unclear, and most of the codes are less than comprehensive. There is very little guidance for application of ethical obligations in any of the codes reviewed. Suggestions for redesign, with a partial example, are provided.     

Bundaberg and beyond: duty to disclose adverse events to patients

Although much excellent work has been done in Australia and elsewhere to improve the safety and quality of health care provision, the practice of medicine is inherently risky--adverse events sometimes occur. In Australia, practical guidelines for the open disclosure of adverse events to patients have been developed and are being implemented. State and Territory medical boards have recently adopted Codes of Conduct which include disclosure provisions, although the Australian Medical Association's Code of Ethics does not yet contain express patient disclosure provisions. There is a dearth of authority concerning legal obligations to disclose known or suspected adverse events. Although many Australian jurisdictions have introduced statutory protection for those who apologise or express regret to patients following an adverse event, there is no corresponding express statutory disclosure obligation, unlike in some parts of the United States. The Bundaberg experience illustrates the complex ethical, practical and legal issues which arise in this area.     

Law as a culture: Global thoughts from a small Island*

ABSTRACT

This paper will seek to address the challenges of teaching legal ethics to undergraduate law students, both generally and in my own institutional context. Ethical conduct has long been held to be a central feature of professionalism and, traditionally, codes of ethics constituted one of the hallmarks and defining characteristics of the professions. The legal profession is no exception to this; however, it has not always been recognised that university law schools have an important role to play in preparing law students for the ethical challenges of legal practice. More recently this indifference has given way to an acceptance of the importance of this area of learning. Rather than being whether to teach legal ethics to law students, therefore, the two fundamental questions for educators are, first, what do students need to learn from the teaching of legal ethics and, secondly, how this is to be achieved. This study also aims to consider the specific challenges of teaching legal ethics to law students from widening participation backgrounds. These issues are particularly important in my own professional context as programme leader for an undergraduate qualifying law degree at an institution with a high population of widening participation students.     

The Chabot case: analysis and account of Dutch perspectives

The aims of this essay are twofold: to point out the main problems of the Chabot precedent and to report the findings of a fieldwork in the Netherlands during which some experts were asked to voice an opinion regarding the psychiatrist's conduct and the legal precedent. During the summer of 1999, twenty-eight interviews with some of the leading authorities on the euthanasia policy were conducted in the Netherlands. Multiple reasons were mentioned to either condone or condemn Chabot's practice.     

关于丢失枪支不报罪客观方面若干问题的认定

犯罪的客观方面是犯罪行为的客观外在表现,犯罪的客观方面是考察整个犯罪构成的向导,是发现和认定犯罪的主观方面的基础,丢失枪支不报罪的客观方面表现为依法配备公务用枪的人员,丢失枪支不及时报告,造成严重后果的行为。对丢失枪支不报罪的客观方面如"丢失枪支"、"不及时报告"、"严重后果"等方面从理论上进行探讨和认定。     

Therapists Behind Bars: Criminalizing Gay‐to‐Straight Conversion Therapy

Conversion therapy is a practice used to “change” an individual's sexual orientation from homosexual to heterosexual. Parents who expose their child to conversion therapy drastically increase the child's likelihood of developing anxiety, depression and self‐destructive behavior. Currently, 18 states ban mental health professionals from conducting conversion therapy. However, in those states, if a mental health professional conducts the therapy, the penalty is only a relatively small fine for unprofessional conduct. Additionally, to report their therapist, victims must file a complaint, which poses difficulties for minors. This Note proposes a criminal statute for mental health professionals who conduct conversion therapy.     

防卫意图是正当防卫理论的短板

正当防卫理论中的防卫意图,对于认定防卫人的行为是否成立正当防卫以及认定防卫过当行为的性质具有重要意义。然而,防卫意图这个主观要件已经成为正当防卫理论中的薄弱环节,司法实践也长期忽视防卫意图的评价功能。防卫意图不要说具有重大缺陷,在认定行为人的行为是否成立正当防卫时,仍应将防卫意图作为必不可少的构成要件。应将防卫意图理解为对意志因素的表达,即指行为人主观上制止不法侵害的愿望或追求。当防卫人制止不法侵害的行为明显超过必要限度时,若防卫人对此有明确认识,则不成立防卫过当,应以故意犯罪认定;反之,成立防卫过当。正当防卫意图的本质决定了防卫过当的行为属性是过失犯罪而非故意犯罪。