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论经验法则的适用与完善 总被引:1,自引:0,他引:1
经验法则是指人们从生活经验中归纳获得的关于事物因果关系或属性状态的法则或知识.经验法则在司法审判实践中具有证据评价、事实推定以及法律解释的功能.由于受法官主观水平的影响,加之经验法则适用制度的不完善,经验法则在司法审判实践中产生了一定的局限性.建议从确立法律规范、完善质疑和上诉程序、明确经验法则标准、限制法官自由裁量权... 相似文献
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经验法则是指人们从生活经验中归纳获得的关于事物因果关系或属性状态的法则或知识。经验法则在司法审判实践中具有证据评价、事实推定以及法律解释的功能。由于受法官主观水平的影响,加之经验法则适用制度的不完善,经验法则在司法审判实践中产生了一定的局限性。建议从确立法律规范、完善质疑和上诉程序、明确经验法则标准、限制法官自由裁量权以及保障当事人证明权等方面进行完善。 相似文献
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经验法则作为约束法官自由心证的一种客观存在的不成文法则逐渐受到司法实务界与学术界的重视.但如何准确适用经验法则,特别是在涉及专业问题的新型案件中准确适用经验法则认定案件事实,仍然是民事诉讼学者探讨的课题.本文从经验法则的概念入手,对经验法则的分类进行探讨,在明确经验法则分为一般经验法则与特殊经验法则的前提下,对民事诉讼... 相似文献
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经验法则作为约束法官自由心证的一种客观存在的不成文法则逐渐受到司法实务界与学术界的重视。但如何准确适用经验法则,特别是在涉及专业问题的新型案件中准确适用经验法则认定案件事实,仍然是民事诉讼学者探讨的课题。本文从经验法则的概念入手,对经验法则的分类进行探讨,在明确经验法则分为一般经验法则与特殊经验法则的前提下,对民事诉讼中如何运用特殊经验法则认定案件事实进行了论证,并对我国审判实践中如何更好地运用特殊经验法则提出了自己的观点。 相似文献
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二元制事实认定结构为间接反证的适用提供了契机.在二元制事实认定结构中,证明与前提事实两立之事实以阻断认定结论性事实的过程,是适用间接反证的典型情况,而直接证明前提事实不成立的防御方法应属于直接反证.具备二元制事实认定结构的事实推定,因其经验法则的盖然性和推定结构并非全部都可以适用间接反证;间接反证同样可以应用于法官对高度盖然性经验法则进行司法认知的表见证明中.而在因果关系和过失的表见证明中,对经验法则的攻击同时也构成了对主要事实的抗辩,所以应区辨间接反证在此情况下之适用效果. 相似文献
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经验法则是民事诉讼中的一项重要证据规则,在诉讼的全过程都发挥着重要作用。笔者从法理学的角度论述了民事诉讼中经验法则所追求的价值目标是相对真实而非绝对真实,是法律真实而非客观真实,深入探讨其适用的法理依据,以期对司法实践有所裨益。 相似文献
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在诉讼领域,人们对经验法则有着不同的理解和认识,经常把经验、常识、自然规律、公理、科学定理和逻辑法则视为经验法则,把推定和司法认知与经验法则混为一谈,这不仅是对经验法则概念本身的误理,也导致了对证据法中的经验法则产生了错误认识,进而造成经验法则在实践中的尴尬. 相似文献
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Sthaneshwar Timalsina 《Journal of Indian Philosophy》2009,37(4):367-382
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. 相似文献
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David Mellins 《Journal of Indian Philosophy》2007,35(3):227-251
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. 相似文献
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Douglas Osto 《Journal of Indian Philosophy》2009,37(3):273-290
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.” 相似文献
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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. 相似文献
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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. 相似文献
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In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings
of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda)
contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation
to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.
Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)相似文献
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Alysa Levene 《The History of the Family》2013,18(2):67-79
This article traces new cycles of interest in past children as distinct from past childhood. Recent work highlighting that a conceptualisation of childhood existed even in periods with few written records closes the chapter begun by Philippe Ariès in 1960. Instead, there has been a new surge of interest in children on the edges of family life, as well as children in similarly liminal positions between the worlds of adults and children: runaways, delinquents and orphans. Several themes in the literature are identified, based on the conflicting ideas of ‘body/mind’, ‘victim/threat’, ‘needs/rights’. It is noted that researchers are using more imaginative ways of reaching the lived experience of children than the family or institutional framework, and that an increasing link is drawn between historical and modern concerns such as child abuse and the care of ‘at risk’ children. 相似文献
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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. 相似文献
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《Science & justice》2022,62(6):785-794
This paper considers whether the adoption of a subject-specific, classroom-based, voluntary extra-curricular student mentoring scheme could provide an effective mechanism and andragogic approach to enhance higher education students’ employability potential pre-graduation.Over the three-year pilot, 26 more advanced (second to fourth year) undergraduate students actively mentored nearly 400 first year undergraduate students during workshops delivered annually within forensic and policing focused courses. In total, 17 mentors anonymously completed online, post-scheme surveys. Survey data was quantitatively analysed to evaluate the scheme, establish which skills and attributes mentors had developed and investigate whether mentors could appropriately identify example skills within professional terminology used during employer recruitment. In addition, this paper reflects on the implementation of remote student mentoring during the COVID-19 pandemic and its adoption within a blended learning framework.The results from this research strongly support mentoring as an effective mechanism to develop undergraduate employability skills, significantly developing mentors’ self-confidence and self-efficacy in their interpersonal and communication skills. Although mentors were aware of university graduate attributes and thought they could evidence these with appropriate examples, in practice this was not necessarily the case. As a result, a framework is proposed to enable mentors to identify their skills and how they may align with competencies sought by relevant forensic and policing employers. However, other andragogic practices may need to be implemented to maximise the potential for successful graduate employment. 相似文献
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Valerie Stoker 《Journal of Indian Philosophy》2007,35(2):169-199
This article explores the way in which Madhva (1238–1317), the founder of the Dvaita Vedānta system of Hindu thought, reformulates
the traditional exegetic practice of nirukta or “word derivation” to validate his pluralistic, hierarchical, and Vaiṣṇava reading of the Ṛgvedic hymns. Madhva’s Ṛgbhāṣya
(RB) is conspicuous for its heavy reliance on and unique deployment of this exegetical tactic to validate several key features
of his distinctive theology. These features include his belief in Viṣṇu’s unique possession of all perfect attributes (guṇaparipūrṇatva)
and His related conveyability by all Vedic words (sarvaśabdavācyatva). Such an understanding of Vedic language invokes the
basic nirukta presupposition that words are eternally affiliated with the meanings they convey. But it is also based onMadhva’s
access to a lexicon entitled Vyāsa’s Nirukti with which his critics and perhaps even his commentators seem to be unfamiliar.While
the precise status of this text is the subject of ongoing debate, Madhva’s possession of special insight into the sacred canon
is established in part by his unique claim to be an avatāra of the wind god Vāyu and a direct disciple of Viṣṇu Himself in
the form of Vyāsa1. Thus, Madhva’s use of nirukta invokes his personal charisma to challenge not only conventional understandings of the hymns
but traditional exegetic norms. Madhva’s provision of an alternative tradition of nirukta provoked sectarian debate throughout
the Vijayanagara period over the extent to which one could innovate in established practices of reading the Veda. Articulating
the Veda’s precise authority was a key feature of Brahmin debates during this period and reflects both the empire’s concern
with promoting a shared religious ideology and the competition among rival Brahman sects for imperial patronage that this
concern elicited. By looking at how two of Madhva’s most important commentators (the 14th-century Jayatīrtha and the 17th-century Rāghavendra) sought to defend his niruktis, this article will explore how notions of normative nirukta were articulated
in response to Madhva’s deviations. At the same time, however, examining Madhva’s commentators’ defense of his niruktis also
demonstrates the extent to which Madhva actually adhered to selected exegetic norms. This reveals that discomfort with Madhva’s
particular methods for deriving words stemmed, in part, from a more general ambivalence towards this exegetical tactic whose
inherent open-endedness threatened to undermine the fixity of the canon’s very substance: its language.
Vyāsa’s Nirukti is one of several ”unknown sources” cited in Madhva’s commentaries whose exact status continues to be debated.
Some scholars (e.g. Rao, Sharma, Siauve) maintain that these texts are part of a now lost Pāṅcarātra tradition that Madhva
is attempting to preserve. This may be true for many of these citations. However, in addition to claiming to be both an avatāra
of Vāyu and Viṣṇu-as-Vyāsa’s student, Madhva states in several places (e.g., VTN 42, RB 162) that the canon has suffered loss
during transmission and that only Viṣṇu can reveal it in its entirety. Thus, it is possible that Madhva intends texts like
Vyāsa’s Nirukti to be viewed as part of an ongoing and corrective revelation, a notion that is compatible with many Vaiṣṇava
traditions (Halbfass, 1991: 4). 相似文献