“对赌协议”的裁判路径及政策选择——基于PE/VC与公司对赌场景的分析

PE/VC与目标公司对赌的司法裁判要点从合同效力转入合同可履行性后,需要面对两个层次的追问:一是以什么样的实体标准来判断履行障碍,二是由谁来判断是否存在履行障碍。华工案和“九民纪要”仅处理了第一个层次的问题,且主要以资本维持原则作为实体判断标准。然而,我国现行公司法资本维持原则过于粗疏,且缺乏“大分配”概念和底线规制的思路,导致“对赌协议”下的回购只能通过减资的途径,徒增成本。域外以清偿能力标准替代资本维持原则,体现了另一种以债权人利益为导向限制公司资产单向流出至股东的规制思路,但其商业逻辑上的合理性却无法掩盖更大的操作成本。就第二层次的判断主体而言,以美国特拉华州为代表,法官的商业判断逐渐让位于公司董事会的商业判断,却进一步凸显了公司、不同类别股东、债权人之间利益冲突的复杂状态。立法层面的价值判断与政策选择将最终决定司法裁判的走向,未来我国公司法的修订需要回应商业实践的诉求,同时PE/VC投资者也需要直面投资失败的风险承担。     

法医精神病鉴定内容架构及评定要点解析

法医精神病鉴定在刑事、民事和行政三大诉讼领域中,以鉴定意见的证据形式发挥着重要作用。然而,与其重要性不相匹配的是,法医精神病鉴定学科发展尚不完善、专业发育尚不成熟,尚不能满足社会和民众的期盼和要求,甚至引发负面评价。为进一步促进法医精神病鉴定规范化、标准化建设。以法医精神病鉴定人的视角,结合法医精神病鉴定的内容架构,重点阐述法医精神病鉴定主要项目及其作用、评定要点,尤其聚焦刑事责任能力评定,阐明当前存在分歧和困难;简要介绍法医精神病鉴定人执业要求、法医精神病鉴定质量控制;以及简述法医精神病鉴定与临床精神医学实践的区别与联系。     

Fingerprint error rate on close non‐matches

The accuracy of fingerprint identifications is critically important to the administration of criminal justice. Accuracy is challenging when two prints from different sources have many common features and few dissimilar features. Such print pairs, known as close non‐matches (CNMs), are increasingly likely to arise as ever‐growing databases are searched with greater frequency. In this study, 125 fingerprint agencies completed a mandatory proficiency test that included two pairs of CNMs. The false‐positive error rates on the two CNMs were 15.9% (17 out of 107, 95% C.I.: 9.5%, 24.2%) and 28.1% (27 out of 96, 95% C.I.: 19.4%, 38.2%), respectively. These CNM error rates are (a) inconsistent with the popular notion that fingerprint evidence is nearly infallible, and (b) larger than error rates reported in leading fingerprint studies. We conclude that, when the risk of CNMs is high, the probative value of a reported fingerprint identification may be severely diminished due to an elevated false‐positive error risk. We call for additional CNM research, including a replication and expansion of the present study using a representative selection of CNMs from database searches.     

注重考试环节提高教学质量

考试是教学的重要环节,不同的学科、不同的课程有不同的特点。命题应严格遵循全面考核,突出重点,理论联系实际,注重考查学生的实务操作能力这一原则。在试题内容上,应难易适度;在阅卷方式上,应根据题型的不同采用不同的判分标准;在应试技巧上,应教导学生要懂、吃透基础知识,学会总结典型题型。同时应加强学生考前模拟训练。     

Evaluating the sensitivity,stability, and cross-reactivity of commercial fentanyl immunoassay test strips

Illicit fentanyl has flooded the United States' drug market, increasing the risk of overdose and poisonings throughout the general population and accidental exposure among law enforcement officers confiscating the increasing number of seizures. Fentanyl test strips (FTS) are used to obtain presumptive information about the presence of fentanyl in a suspected sample. However, their adoption by law enforcement personnel and seized-drug analysts has been limited because most products are advertised for urine testing, not for assays using water solutions. This study presents an evaluation of four commercial FTS: Rapid Response from BTNX, Inc.; T-Dip Fentanyl (FTY) Urine Dip Cards obtained from Amazon.com ; Premier BioDip FYL10 from Premier Biotech Inc.; and MobileDetect Fentanyl strips from DetectaChem, Inc. Performance characteristics curves were used to compare the products' sensitivity, showing that all can reliably detect fentanyl in aqueous solutions at concentrations below 1 μg/mL, with some of the tests able to reliably detect the drug at 200 ng/mL. A stability study demonstrates the performance of all four FTS brands was only slightly affected after 30 days of storage at two extreme environmental conditions. Fentanyl-related substances are also evaluated using the Rapid Response FTS, which showed high cross-reactivity with para-fluorofentanyl and acetylfentanyl, but lower with ortho-chlorofentanyl, carfentanil, and 4-ANPP. Users should be aware that FTS may give false-negative results even when potentially dangerous levels of carfentanil are present. When testing other common drugs, adulterants, and diluents frequently encountered in seized tablets, concentration-dependent results were obtained and multiple instances of false positives were recorded.     

Banking supervision and the politics of verification: the 2014 stress test in the European Banking Union

The statistical methodology known in financial terminology as ‘stress testing’ was used by the European Central Bank in 2014 in order to assess the solidity of the banks in the eurozone. This audit process is analysed here as a problem of truth production or ‘veridiction’ in the sense developed by Michel Foucault in his 1978–1979 lectures at the Collège de France. In order to prove effective, the stress test had to deliver knowledge on banks, objectified and actionable at once, but also controlled by the idea of avoiding ‘market panic’. This epistemological dilemma is at the core of the politics of verification, which consists in the distribution of restraint and responsibility between non-risky and risky banks. This qualitative investigation is focused on France and is based on interviews with relevant policy actors and documentary analysis.     

附条件不起诉之进一步构建——基于我国《刑事诉讼法修正案》之思考

《中华人民共和国刑事诉讼法修正案》将附条件不起诉制度化是正确之选。但是相对于附条件不起诉所可能发挥的积极作用和空间相比,其规定却显得过于保守和谨慎。为此,应在现有的基础上从适用范围、考验期限和考验内容三个方面进一步加以构建。     

Maximum likelihood estimation of structural VARFIMA models

This paper considers the maximum likelihood estimation of a class of structural vector autoregressive fractionally integrated moving-average (VARFIMA) models. The structural VARFIMA model includes the fractional cointegration model as one of its special cases. We show that the conditional likelihood Durbin–Levinson (CLDL) algorithm of Tsay (2010a) is a fast and reliable approach to estimate the long-run effects as well as the short- and long-term dynamics of a structural VARFIMA process simultaneously. In particular, the computational cost of the CLDL algorithm is much lower than that proposed in Sowell (1989) and Dueker and Startz (1998). We apply the CLDL method to the Congressional approval data of Durr et al. (1997) and find that the long-run effect of economic expectations on Congressional approval is at least 0.5718, which is over twice the estimate of 0.24 found in Table 2 of Box-Steffensmeier and Tomlinson (2000). This paper also tests the divided party government hypothesis with the CLDL algorithm.     

The Accuracy of Handheld Pre‐Arrest Breath Test Instruments as a Predictor of the Evidential Breath Alcohol Test Results

Drunk driving is a serious threat to public safety. All available and appropriate tools for curbing this threat should be employed to their full extent. The handheld pre‐arrest breath test instrument (PBT) is one tool for identifying the alcohol‐impaired driver and enforcing drunk driving legislation. A set of data was evaluated (n = 1779) where the PBT instrument was employed in drunk driving arrests to develop a multivariate predictive model. When maintained and operated by trained personnel, the PBT provides a reasonable estimate of the evidential test result within the relevant forensic range (95% prediction interval:  ± 0.003 g/210 L). ROC analysis shows that a multivariate model for PBT prediction of the evidentiary alcohol concentration above versus below the legal limit of 0.08 g/210 L has excellent performance with an AUC of 0.96. These results would be of value in evidential hearings seeking to admit the PBT results in drunk driving trials.     

A Simple Digestion Method with a Lefort Aqua Regia Solution for Diatom Extraction

Presence of diatoms in tissues has been considered as a significant sign of drowning. However, there are limitations in the present extraction methods. We developed a new digestion method using the Lefort aqua regia solution (3:1 nitric acid to hydrochloric acid) for diatom extraction and evaluated the digestive capability, diatom destruction, and diatoms' recovery of this new method. The kidney tissues from rabbit mixed with water rich in diatoms were treated by the Lefort aqua regia digestion method (n = 10) and the conventional acid digestion method (n = 10). The results showed that the digestive capability of Lefort aqua regia digestion method was superior to conventional acid digestion method (p < 0.01); the structure of diatom remained almost intact; and the recovery of diatom was comparable to the conventional acid digestion method (p > 0.05). The Lefort aqua regia reagent is an improvement over the conventional acid digestion for recovery of diatoms from tissue samples.