论法治国家、法治政府、法治社会建设的相互关系

法治国家、法治政府、法治社会三个概念在同一时空使用时,法治国家指整个国家公权力的法治化;法治政府主要指国家行政权行使的法治化;法治社会则主要指政党和其他社会共同体行使社会公权力的法治化。法治国家、法治政府、法治社会建设的相互关系是:建设法治国家是建设法治政府的前提,建设法治政府是建设法治国家的关键;建设法治国家是建设法治社会的基础,建设法治社会是建设法治国家的条件;建设法治政府是建设法治社会的保障,建设法治社会是建设法治政府的目标。     

Finding of a bullet in the cervical column of a body hit by a train

This case is about the finding of a body of an unidentified male of approximately 70 years of age who was hit by a train. During the carrying out of the corresponding autopsy and after the radiological tests for posterior odontological identification, a foreign body of a cylindrical-cone shape, identical to that of a bullet, was found lodged between the first and second cervical vertebrae. During dissection of the neck, a bullet was found. When the ballistic test was carried out, it was ascertained that the bullet was from a cartridge of 7.92 by 57-mm Mauser caliber, manufactured in Spain in 1936. This ammunition corresponds to that used during the Civil War in Spain (1936-1939). After the identification of the body, it was proved that the bullet was the result of a war wound. However, the victim had been unaware of the existence of the bullet, which had remained in his body for 50 years.     

合同成立与生效区分的再探讨

作者考察了各主要国家民法对合同成立与生效区分的态度及其成因,认为法律对这一区分的态度受到合意在交易中的地位、意思主义与表示主义、法律对法律行为本质的认识等因素的影响,并探讨了合同成立与生效区分的意义、合同的不成立与被撤销之间的关系等内容.在此基础上,揭示了我国《合同法》区分合同成立与生效的法理基础及《合同法》相关规定的不足之处.     

Estimation of the quantity of a drug in a consignment from measurements on a sample

A consignment of individual packages is thought to contain illegal material, such as drugs, in some or all of the packages. A sample from the consignment is inspected and the quantity of drugs in each package of the sample is measured. It is desired to estimate the total quantity of drugs in the consignment. Sampling variation is present in the original measurements and it is not sufficient just to adjust the sample mean pro rata. An analysis is described which takes account of the uncertainty concerning the proportion of the packages that contain drugs and provides a probabilistic summary of the quantity of drugs in the consignment. In particular, a probabilistic lower bound for the quantity of drugs in the consignment is given, which is dependent on the required standard of proof. This is in contrast to the approach based on confidence intervals which assumes that in the long run, the interval will contain the correct quantity the appropriate proportion of the time, but gives no measure of uncertainty associated with the particular consignment under consideration.     

Monitoring the Work of the Apparatus of a Ministry

The rise in the scale and complexity of the tasks of building communism constantly puts new and higher demands on the apparatus for managing the country's economic and social development. A special role in assuring that the mechanism of administration will proceed without fits and starts belongs to the ministries, upon which are placed the full responsibility for the state of affairs in the branches of economy and culture under their jurisdiction. The December 1977 Plenum of the CPSU Centr Committee emphasized that the duty of the heads of each branch and each ministry requires that, as they seek improvement of their indices, they tie this as closely as possible to the final effect of their work on the national economy, that they overcome elements of localism and departmentalism, and that they help to satisfy real social needs in the most economical and effective manner possible.     

Young children's classification of the corroboration of a false statement as the truth or a lie

This article reports on an investigation of children's definitions of the truth that can pertain to their ability to provide accurate information during an, investigation or trial: whether corroborating an inaccurate statement made by a parent is lying or telling the truth. Subjects were 133 preschool through third-grade children who were shown a videotape in which either a boy makes a false statement to a neighbor about the neighbor's daughter hitting him and his mother listens passively or a mother makes a similar false statement and the boy corroborates it. None of the children classified the corroboration as the truth. Only a small percent of the preschool and kindergarten children classified the boy's or mother's initial false statement as the truth; all of the older children classified these statements as a lie. About 20% of the children recalled incorrectly that the neighbor's daughter hit the boy.This project was supported with funds from the College Research Grant Fund of the College of Human Ecology, Cornell University. Great appreciation goes to several schools, including Groton Elementary (Joseph Amore, Principal), Montessori School of Ithaca (Carol Hill, Co-Administrator), Ithaca Community Child Care Center (Gloria Landis, Teacher), and Pinwheels Day Care Center (Kendra Maturo, Administrator). Virginia Alhusen, Ph. D., managed data collection and analysis for the project superbly.     

法官自由裁量权论纲

法官自由裁量权的行使是法律适用中的重要问题。本文从法理学的角度首先分析了法官自由裁量权存在的最基本动因,认为法律规则的固有缺陷是法官自由裁量权存在的最基本原因;随后在对法官自由裁量权的不同理解进行考察的基础上,对法官自由裁量权的内涵进行了界定;最后通过对法官自由裁量权运行的分析,指出直觉、知识、逻辑以及视域的开放是法官进行自由裁量时所涉及到的四个最基本的因素,而这四个因素被合理地组织到自由裁量的最基本过程。     

犯罪构成视野中的行为概念--兼谈"犯罪"认定的观念指导

传统刑法理论对“危害行为”概念的界定实际上只是对现实生活中犯罪行为“原型”的简单实然描述,这与它作为犯罪构成客观要件之一的地位是不相符的。犯罪构成是立法者从众多犯罪行为原型中抽象出的并体现其利益与价值观念,作为评判行为是否具有“犯罪性”的“模型”或最低度的条件。因此,四大要件只能表征各自不容交叉的特定涵义。“危害行为”只是自然意义上的“身体动静”。故而其表述是欠妥的,宜更改为“行为要件”。同时,在犯罪构成评价前探求一种前置的行为概念——“行为事实”,在理论和实践上都具有可行性和必要性。“犯罪行为”是违反刑法规范的身体动静。     

物之交付执行中的案外人救济程序研究

在物之交付执行中,执行机构应当仅针对执行名义特定化之物采取执行措施,当事人或利害关系人认为执行标的物不是执行名义特定化之物的,可以通过《民事诉讼法》第232条规定的执行行为异议及复议制度谋求救济。在执行程序开始前或终结后,被漏列为必要共同诉讼当事人的案外人应当通过申请再审之诉救济,其他类型的案外人应当通过第三人撤销之诉的方式谋求救济。在执行程序中,案外人以其对执行标的物享有民事权益为由提出排除执行异议但被执行法院裁定驳回的,案外人阻止物之交付的具体救济途径取决于其是否主张属于被原审法院漏列的必要共同诉讼人,以及据以请求阻止交付的民事权益形成时间与物之交付判决确定时间的先后顺序。     

Return of the fetish: a plea for a new materialism

This essay argues for a renewed form of critique based upon a non-deflationary realist and materialist understanding of the nature of objects. Such an understanding is set against the deflationary conception of materiality common nowadays, one that sees ‘signs’ in the place of powerful objects (exemplars, charms, fetishes), adjudicates against the latter as mere relics of the past and can only conceive of material relations and causality in representational terms, as co-relative to our self-positing powers. Such a conception is responsible for our present inability to think the role of radical claims, thick attachments and religious objects in modern secular societies. The argument is developed from within a phenomenological tradition that includes Hegelo-Marxian themes and connects them with more and less recent insights from anthropology and elsewhere concerning value and objectification in modern times.

Protecting the planet: a proposal for a law of ecocide

A wide range of actions imperil the planet and threaten the future of humanity and other species. This essay notes some examples of crimes and harms damaging to the environment and human and non-human species as well as various forms of response that have called for more effective and appropriate models of justice and law than currently prevail. This leads to a discussion of several suggestions regarding the development and expression of an earth jurisprudence and to the history of a proposal that “ecocide” be recognised internationally as a crime. Analysis of documentary sources traces this idea from debates about the concept of genocide to consideration by United Nations officials as to how crimes against the environment might be defined, and shows how near such a proposal has previously come to acceptance and enactment. The article concludes with an argument for supporting a law of ecocide as the 5th Crime against Peace.     

Discharge of a Pistol Out a Car Window with the Breech Within the Interior of the Car: Analysis of Gunshot Residue on a Car's Interior Surfaces

The defendant, the driver of the questioned car, allegedly extended his right arm over the passenger seat and fired a single shot from a 380 pistol out the passenger window with the pistol's breech within the car. A simulation of this shooting scenario using the same model car, but different year, was conducted to quantitate gunshot residue (GSR) contamination of interior surfaces within the car. The test car's dash and headliner/window frame above the pistol had the heaviest GSR contamination. The dash GSR from airborne deposition documents a firearm discharge within the vehicle. Transfer from GSR‐contaminated hands or clothing to the dash is unlikely. The heavy GSR contamination of the headliner/window frame above the pistol likely documents the window from which the pistol was fired, but additional experiments are needed to verify.     

词价值获得原理探微

一般而言,词价值获得的主要途径大概有三条:一是语言学意义上的途径,即词价值由个体语言系统中的复杂联带关系所确定;二是经济学意义上的途径,即词价值首先是由劳动创造的,然后才由人对词的需求所决定;三是哲学意义上的途径,即在人与词的相互作用过程中,作为客体的词对于作为主体的人而言,不仅具有某种明确的意义或语义,而且词能满足人的某种欲望,因而词具有某种效用或有用性。所以词具备价值。