刑期折抵的理论定位

在现代刑法中,刑期折抵不只是一个法律规定,而且是一种现代法律制度。这种法律制度,相对于所处法律关系的不同,可有不同的理论定位。其中,从羁押折抵刑期的本质来看,其立法设置旨在救济未决羁押之正当性瑕疵,是刑事实体救济制度;从罪刑关系运行所处时间阶段来看,其司法适用需要审判裁量,是刑罚裁量制度;从适用的法律后果来看,其司法适用导致刑罚执行权的部分甚至全部消灭,是刑罚消灭制度。     

宪法权威的生成机制辨析

宪法权威的大小受制于社会发育的情况,只有在市民社会发育良好,并且能同政治国家形成有力制衡的条件下,宪法权威才有可能逐步形成。宪法实施的积极的、主要的、基本的方式是立法机关的立法,在违宪审查机制的作用下,确保立法机关的立法符合宪法精神和原则,保障宪法实施的内在统一;在相关立法不足的情况下,通过宪法司法化,直接援引宪法规范维护宪法主体的宪法权利,乃是宪法实施的一种辅助方式。在宪政秩序不健全的社会,关注各种宪政事件,对于实施宪法,维护宪法权威具有重要意义。     

Delimitation of the time of death by immunohistochemical detection of thyroglobulin

To improve the possibilities to delimit the time of death after longer laytime it was examined if this is possible by immunohistochemical detection of thyroglobulin. The results show that in our examination material the colloid and the follicular cells of the thyroid glands of up to 5-day-old corpses produce a positive immunoreaction towards thyroglobulin in all cases whereas none of the corpses older than 13 days show such a reaction. This means that in case of a negative immunoreaction the time of death can be assumed to lie more than 6 days before the autopsy. The fact that a negative immunoreaction occurs consistently after 13 days leads to the conclusion that when thyroglobulin has been stained in a specimen, the death of the respective person must lie a maximum of 12 days earlier, whereby these time-limits may change in considerably different surrounding conditions.     

试论中国当前宗教管理法制化的二元模式

我们都知道，当代中国正处于一个剧烈的社会转型时期，所谓“三千年未有之变局”，在今天依然如此，这个变局正在发生的过程之中。因此，考察中国的政法事务，我们要有这样一个历史时代的背景关照，我们面临的一系列政法问题是一个从旧体制向新体制转变的复杂过程中催生的问题。具体到中国当前的宗教法治化问题，我认为首先要有这样一个历史演变的视角。说起来今年是一个特殊的年份，     

Levels of Generality in the Legal Reasoning of the European Court of Justice

The level of generality or of abstraction used to describe a precedent, a right, or the legislative intent behind a statutory provision or constituent purpose behind a constitutional provision can have a decisive impact on the outcome of a case. Characterising it in narrow terms has the effect of reducing the scope of decision of a judgment; conversely, a broader characterisation provides more leeway for a judge in a case to encompass its facts within the precedent, right or purpose in issue. The issue raised by the level of generality problem is the extent to which courts have a discretion or freedom of manoeuvre as to the level of generality they decide upon, and thus whether generality and abstraction are manipulable in the hands of judges and are not really predetermined by the legal sources in question or an established judicial method of interpretation. Uncontrolled judicial discretion of this kind is problematic from the point of view of the rule of law and democracy, especially when adjudication concerns constitutional provisions, the equivalent in the EU being interpretation by the European Court of Justice (ECJ) of the EU Treaties; reversal of ECJ interpretation through Treaty amendment is particularly difficult to achieve because it requires unanimous coordination by the Member States. This article examines two alternative ways of determining the correct or appropriate level of generality issue in ECJ interpetation, coherence or the legal traditions of the Member States, and argues in favour of the latter as a less subjective method. Application of the two alternative approaches is tested in two areas of EU law, state liability and criminal law.     

Delimitation of the time of death by immunohistochemical detection of calcitonin.

To improve the possibilities of delimitating the time of death after longer laytime it was examined if this is possible by immunohistochemical detection of calcitonin. The results show that in our examination material the c-cells of the thyroid glands of up to 4-day-old corpses produce a positive immunoreaction towards calcitonin in all cases whereas none of the corpses older than 13 days show such a reaction. This means that in the case of a negative immunoreaction the time of death can be assumed to lie >4 days before the autopsy. The fact that a negative immunoreaction occurred consistently after 13 days leads to the conclusion that when calcitonin has been stained in a specimen, the death of the respective person must lie a maximum of 12 days earlier, whereby these time-limits may change in considerably different surrounding conditions.     

Delimitation of the time of death by immunohistochemical detection of thyroglobulin

To improve the possibilities to delimit the time of death after longer laytime it was examined if this is possible by immunohistochemical detection of thyroglobulin. The results show that in our examination material the colloid and the follicular cells of the thyroid glands of up to 5-day-old corpses produce a positive immunoreaction towards thyroglobulin in all cases whereas none of the corpses older than 13 days show such a reaction. This means that in case of a negative immunoreaction the time of death can be assumed to lie more than 6 days before the autopsy. The fact that a negative immunoreaction occurrs consistently after 13 days leads to the conclusion that when thyroglobulin has been stained in a specimen, the death of the respective person must lie a maximum of 12 days earlier, whereby these time-limits may change in considerably different surrounding conditions.     

论船舶所有人责任限制

国际海上运输与其它运输方式相比,具有较大的危险性,且海上危险具有全损性,一旦发生海上事故,实行一般民法损害赔偿的“所受损害及所失利益”的“完全赔偿”方法,不利于船舶所有人的资本保护。因此,为了适应国家发展需要,鼓励和扶持航海事业,各国海商立法大都对船舶所有人责任加以限制。但是,鉴于船舶所有人责任限制政策影响索赔人权益甚巨,国际公约及各国立法趋向对船舶所有人的责任限制力求合理与公平,即船舶所有人责任制度已由纯粹保护船舶所有人的传统做法,逐渐转型为兼顾社会利益与债权人利益的做法。     

作为海上货物运输合同证明之提单的功能异化

航运经济基础的变化和合同概念的历史变迁等诸多因素使然,作为一种为立法所明确的功能,提单是海上货物运输合同的证明这一功能正在得到修正。在特定的条件下,提单就是海上货物运输合同。这就是提单的功能异化。这必然促使我国现行立法关于提单功能的界定发生变化。     

The Making of a Market Economy in China: Transformation of Government Regulation of Market Development

Abstract:  The making of a market economy in China occurred when the domestic legal system was largely underdeveloped. It is the administrative bureaucratic system that has played a leading role in the making of a market economy in China. In recent years, the Chinese Government has strived to establish a market economy based on the rule of law and has undertaken legal measures to rationalise government regulation of market economy development. However, the administrative bureaucratic system headed by the central government remains a strong party leading the market economy construction in China. This article argues that the administrative bureaucratic system and market economy development have evolved into a social institution. To transform the regulation of market economy development towards the rule of law is a social institutional change and is a slow and incremental process, as it is imbedded in the various formal and informal constraints in Chinese society.     

登记的担保权顺位规则研究——以《民法典》第414条分析为中心

登记的担保权顺位规则旨在解决以登记作为公示方式的担保权竞存时的顺位问题,《民法典》第414条构建了以登记为中心的抵押权竞存下的顺位规则,该条具有强大的体系效应和广泛的适用价值,它构建了统一的动产重复抵押的顺位规则,解决了权利重复抵押的顺位规则、抵押权与可以登记的权利质权冲突规则,明确了典型担保与非典型担保之间的顺位关系,并可参照适用于权利质权竞存情形下权利顺位的确定,为多重的担保性债权转让的顺位规则提供了基础。《民法典》第414条确立了顺位升进主义。但《民法典》第414条在适用中应当排除正常经营买受人优先保护规则、价金超级优先权规则等规则的适用。     

Effect of History and Context on Forensic Pathologist Interpretation of Photographs of Patterned Injury of the Skin

In a previous study, a survey‐based analysis of pathologist diagnoses of patterned injury was performed. Subjects were provided with photographs of “classic” injuries and asked to diagnose the lesion in the absence of history or context. There was a relatively low diagnostic consensus among respondents. A second survey suggested that the disparate answers were not due to a strong belief in different diagnoses, but instead reflected how the respondents dealt with ambiguity. A third survey was created that asked participants to evaluate patterned injuries of the skin, but provided history and contextual information. The addition of history and contextual information increased consensus from a median of 80% to 98% on a per‐question basis. Confidence increased from a median of 56%–92%. These results demonstrate the importance of history and context in medical diagnosis of patterned injuries of the skin.     

The Genesis of the Austrian Model of Constitutional Review of Legislation

Abstract The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court.     

The effect of the ageing of crime scene objects on the results of scent identification line-ups using trained dogs

In a scent identification line-up, a trained dog matches the scent trace left by a perpetrator at the crime scene to the odour of a suspect in a line-up of different odours. The procedures are strictly defined and the results are routinely used by the police and as evidence in court in a number of European countries. This paper describes the effect of ageing of the odour trace collected at the crime scene on the performance of the dogs in recognising the perpetrator in a line-up. The results show that whilst the dogs perform faultlessly in matching odours collected on the same day, the results drop to a lower level and become more variable in the period studied (2 weeks to 6 months). However, the results do not show a systematic decrease in performance. A possible explanation is the development of a steady state in the glass jars containing the perpetrator odour trace after initial differential evaporation of components of the residue or break down of unsaturated components into saturated ones. Prevention of this initial change may prevent the drop in performance observed in this study, thus increasing the reliability of these scent identifications.     

犯罪客体是刑事违法的最高价值标准

犯罪客体并不具有哲学意义上客体（对象）的含义。它是生活行为是否违反刑法的价值标准。它的内容是刑法法益。它派生出客观构成要件,并对客观构成要件具有解释功能。因为生活行为符合客观构成要件就刑事违法,构成要件符合性必须先形式判断,后实质判断,而犯罪客体就是实质判断的价值标准,所以犯罪客体是刑事违法的最高价值标准。根据罪刑法定原则,犯罪客体必须法定。     

Delimitation of the time of death by immunohistochemical detection of glucagon in pancreatic alpha-cells.

To improve the possibilities of delimitating the time of death after longer laytime it was examined if this is possible by immunohistochemical glucagon detection. The results show that in our examination material the pancreatic alpha-cells of up to 6-day-old corpses produce a positive immunoreaction towards glucagon in all cases whereas none of the corpses older than 14 days show such a reaction. This means that in the case of a negative immunoreaction the time of death can be assumed to lie more than 7 days before the autopsy. The fact that a negative immunoreaction occurs consistently after 14 days leads to the conclusion that when glucagon has been stained in a specimen, the death of the respective person must lie a maximum of 13 days earlier, whereby under markedly different conditions to the ones of the cases here examined, a negative immunoreaction could happen earlier and a positive immunoreaction even later.     

Predictors of length of stay in forensic psychiatry: The influence of perceived risk of violence

This study describes the prevalence of adverse events and length of stay in forensic psychiatric patients with and without a restriction order. Detailed clinical and administrative information from medical records and written court decisions was gathered retrospectively from admission until discharge for a Swedish population-based, consecutive cohort of forensic psychiatric patients (n = 125). The median length of stay for the whole cohort was 951 days, but patients with a restriction order stayed in hospital almost five times as long as patients without. Restriction orders were related to convictions for violent crime, but not for any other differences in demographic or clinical variables. The majority of the patients (60%) were involved in adverse events (violence, threats, substance abuse, or absconding) at some time during their treatment. Patients with restriction orders were overrepresented in violent and threat events. Previous contact with child and adolescence psychiatric services, current violent index crime, psychotic disorders, a history of substance, and absconding during treatment predicted longer length of stay. Being a parent, high current Global Assessment of Functioning scores, and mood disorders were all significantly related to earlier discharge. In a stepwise Cox regression analysis current violent index crime and absconding remained risk factors for a longer hospital stay, while a diagnosis of mood disorder was significantly related to a shorter length of stay.     

法的渊源意识的觉醒

迄今为止的法律学说在很大程度上是环绕着法的渊源展开的,法的形成和法的应用甚至以法的渊源为立命的前提性基础;然而法的渊源意识的基础和依托至今仍然殊为薄弱。奥斯汀固然奋力呼吁人们革除法和法的渊源研究方面的弊病,把法和法的渊源从散漫、驳杂和喧闹不已的“超市”中引领出来,却又失之于将其禁锢在一个狭隘的天地。奥斯汀身后的法律学人在探讨法的渊源方面亦有努力,但这种努力并未达致较为成熟的程度。实际的情形表明,如欲转变长期以来未能深究法的渊源因而总是被动地同法的渊源发生关联的情境,俾使法的渊源、法律学说和法律实践三者的融合处于和谐状况,促动法的渊源这种宝贵的资源、进路和动因在良法美制的形成方面展现上佳作用,很显然需要法律人形成自觉且科学的法的渊源意识,需要有普遍的法的渊源意识的觉醒。