形式解释论与实质解释论对立的深度解读

实质的刑法解释论与形式的刑法解释论是大陆法系不同的构成要件理论（构成要件符合性判断）之争的产物。由于我国两大解释论之争在逻辑起点和具体内涵上都存在模糊不清之处,因此有必要对我国当下形式解释论与实质解释论之争进行重新定位与解读。首先,传统的平面式犯罪论体系框架下的两大解释论之争是在＂虚幻的对立＂中展开的,其产生的原因实际上并不存在。其次,两大解释论之争是在阶层式犯罪论体系的语境下展开的,且与阶层式犯罪内部三阶层、二阶层的分歧有关。但是,当下我国形式解释论与实质解释论的争论焦点与其说是对＂构成要件符合性＂的解释之争,不如说是对＂罪刑法定原则符合性＂的理解之争。     

THE PRAGMATIC AMERICAN: EMPIRICAL REALITY OR METHODOLOGICAL ARTIFACT?

Scholars widely agree that the public is pragmatic about criminal justice. The empirical basis for this conclusion is the failure in several previous studies to find a sizable negative relationship between dispositional and situational crime attributions, or between support for punitive and rehabilitative crime policies. We suggest, however, that public pragmatism may be an artifact of the use of unidirectional question batteries in prior research to measure attribution styles and policy support. When such questions are used, acquiescent responding can introduce systematic error that is positively correlated across items and scales. Drawing on data from an experiment with a national sample (N = 826) of Internet panelists, we examine how this methodological approach impacts the bivariate correlations and multivariate relationships between attribution styles and between support for punitive and rehabilitative crime policies. The findings reveal that using unidirectional sets of questions to measure these concepts likely results in 1) inflated alpha reliability coefficients, 2) an underestimation of the magnitude of the negative relationships between attribution styles and between punitiveness and support for rehabilitation, and 3) an underestimation of the extent to which punitiveness and support for rehabilitation are driven by the same factors, working in opposite directions.     

Determination of opiates and cocaine in hair using automated enzyme immunoassay screening methodologies followed by gas chromatographic-mass spectrometric (GC-MS) confirmation

The objective of this study was to develop a two-step strategy for analysis of opiates and cocaine in hair samples involving an immunological screening procedure followed by confirmation of results using gas chromatography-mass spectrometry (GC-MS). A semi-quantitative automated competitive enzyme-linked immunosorbent assay (ELISA) methodology using Oral Fluid Micro-Plate Enzyme Immunoassays (Orasure Technologies, Inc.) was developed and validated. Applicability was proven by analysis of authentic head hair samples from drug users (n=103) and from opiate associated fatalities (n=21). The optimum cutoff values for the ELISA tests were 0.1 ng cocaine-equivalents/mg hair and 0.05 ng morphine-equivalents/mg hair using a 50 mg hair sample. Both ELISA tests had a sensitivity of 100%, the specificity was 66% for cocaine-equivalents and 42% for morphine-equivalents. The intraassay precision was 11% for the cocaine and 3% for the opiates ELISA, while interassay precision was 12% for the cocaine and 4% for the opiates ELISA test. The actual analyte concentrations in the hair samples were determined using GC-MS and were between 0.04 and 5.20 ng/mg for heroin (HER), between 0.04 and 30.01 ng/mg for 6-monoacetylmorphine (MAM), between 0.03 and 11.87 ng/mg for morphine (MOR), between 0.02 and 1.84 ng/mg for codeine (COD), between 0.02 and 2.48 ng/mg for acetylcodeine (AC), between 0.01 and 21.37 ng/mg for cocaine (COC), between 0.03 and 10.51 ng/mg for benzoylecgonine (BE) and between 0.05 and 1.26 ng/mg for cocaethylene (CE). The automated ELISA tests were proven to be valid screening procedures for the detection of cocaine and opiates in hair as confirmed by GC-MS. Screening methods provide rapid and inexpensive automated pre-test procedures to detect drugs in hair or other matrices. For forensic purposes screening therefore represents an ideal complement to routinely applied GC-MS procedures.     

Communal Ties and Political Obligations

The associative argument for political obligation has taken an important place in the debate on political obligation. Proponents of this view argue that an obligation to obey the government arises out of ties of affiliation among individuals who share the same citizenship. According to them, relationships between compatriots constitute basic reasons for action in the same way in which relationships between family members or friends do. As critics point out, this account of the normative force of relationships has counterintuitive implications: if relationships between people sharing the same citizenship make up basic reasons for action, then relationships between people sharing other attributes, for example, relationships between racists or sexists form basic reasons for action too. In this essay, I pursue a modified version of the associative approach that is not vulnerable to this objection.     

河南省安阳市6-15周岁汉族人牙龄的研究

目的建立利用牙齿钙化程度推断未成年人年龄的方法。方法选取河南省安阳市1575名（男性900名,女性675名）6～15周岁人群的全口曲面断层影像片,依照牙齿钙化分级标准对下颌恒牙钙化程度进行评分分级;所得数据经SPSS13．0软件统计分析,建立根据牙齿钙化程度推断年龄的方程;采用拟合优度检验、模型方差分析、回归系数检验和共线性诊断、残差分析对方程的合理性进行检验及盲测。结果下颌同名牙间钙化分级评分值无统计学差异（P〉0．05）,而下颌同名牙性别间钙化评分值在部分年龄组存在差异（P〈0．05）;下颌恒牙的钙化程度与年龄相关系数r均大于0．7;所建方程模型调整决定系数均大于0．8,估计值标准误男性为0．92岁至1．04岁、女性为0．92岁至1．00岁;推测年龄与真实年龄的平均误差男性为0．433±0．288岁、女性为0．502±0．297岁。结论本研究建立的方法在推断相关地区、相关年龄段人群的年龄推断中有较好的应用前景。     

论我国民间借贷合同法律适用的民商区分

按照是否为自然人之间的借贷,《民间借贷司法解释》对利息约定不明的两种情形规定了不同的裁判规则。这种区分处理具有进步意义,但未能根据民商区分的理念作科学合理的区分,导致相关裁判规则存在标准混乱、规则缺失的问题。要确定民间借贷民商区分的判断标准,首先得解决民商区分的判断标准。我国应回避从内涵到外延都存在极大争议的商主体概念,借助“以营利为主要目的”的商行为概念及内涵和外延都确定的企业概念来界定商事法律关系,从而确定民商区分的法律适用难题。在确定了我国民商区分的判断标准后,民间借贷民商区分判断标准的厘定就迎刃而解了。据此,可确定民商区分视野下民间借贷纠纷裁判规则的完善方案。     

THE ROLE OF TURNING POINTS IN ESTABLISHING BASELINE DIFFERENCES BETWEEN PEOPLE IN DEVELOPMENTAL AND LIFE‐COURSE CRIMINOLOGY

Turning points, between‐person differences, and within‐person changes have all been linked to desistance from crime. Nevertheless, the means through which between‐person differences are frequently captured in life‐course criminology makes them intertwined with, and perhaps confounded by, turning points in life. We propose that a new way of capturing the between‐person effect—the baseline between‐person difference—could benefit theoretically informed tests of developmental and life‐course issues in criminology. Because they occur at one time point immediately preceding a turning point in life, we demonstrate that baseline between‐person differences establish meaningful theoretical connections to behavior and the way people change over time. By using panel data from the Serious and Violent Offender Reentry Initiative, we estimate models capturing within‐person change and baseline between‐person differences in social bonds (family support) and differential association (peer criminality) at the time of release from prison. The results demonstrate that baseline levels of family support protect people from postrelease substance use but not from crime. Baseline between‐person differences and within‐person changes in peer criminality, however, are robustly related to crime and substance use. Collectively, baseline between‐person differences seem critical for behavior and within‐person change over time, and the results carry implications for reentry‐based policy as well as for theory testing in developmental criminology more broadly.     

陕西省6～15岁汉族未成年人牙龄的研究

目的运用全口曲面断层影像技术,研究陕西省6-15岁汉族未成年人牙齿钙化规律,建立利用牙齿钙化程度推断陕西汉族6-15岁未成年人年龄的方法。方法按照中国汉族儿童及青少年牙齿钙化分级标准,对1997名（男934名,女1063名）陕西省6-15岁汉族未成年人的全口曲面断层影像中下颌恒牙钙化程度进行分级评分;将所得评分值及对应的年龄输入SPSS软件并进行统计分析,最终建立年龄推断的方程。结果下颌同名牙钙化评分值侧别间非参数检验结果 P〉0.05,而性别间非参数独立样本检验结果 P〈0.05;下颌左侧各颗恒牙钙化程度与年龄相关分析结果 r〉0.59;方程拟合优度检验所得校正决定系数均大于0.76,估计值标准误男性在0.85-1.05岁之间、女性在0.83-0.97岁之间。结论本研究建立的方法合理可靠,可用于陕西省汉族6-15岁未成年人年龄的推断。     

The Crisis of Europe: Democratic Deficit and Eroding Sovereignty—Not Guilty

Taking inspiration from a distinction Kant drew between the way power is organised, and the manner in which it is exercised, this analysis directs attention to the consolidation of an autocratic style of politics in Europe. The co-existence between an autocratic style of rule and preserved democratic organisation of power, which prevents a legitimation crisis, is explained in terms of an altered legitimacy relationship (or social contract) between public authority and citizens. This ultimately allows a discrepancy to emerge between public authority’s increased capacity for policy action and reduced social responsibility for the consequences of that action.     

Quantitative analysis of sharp-force trauma: an application of scanning electron microscopy in forensic anthropology.

Scanning electron microscopy (SEM) has occasionally been used by anthropologists and forensic scientists to look at morphological characteristics that certain implements leave on bone. However, few studies have addressed techniques or protocols for assessing quantitative differences between tool marks on bone made by different bladed implements. In this study, the statistical variation in cut mark width was examined between control and test samples on bone using a scalpel blade, paring knife, and kitchen utility knife. Statistically significant differences (p < .0005) were found between cut marks made by the same knife under control and test conditions for all three knife types used in the study. When the control sample and test samples were examined individually for differences in mean variation between knife types, significant differences were also found (p < .0005). While significant differences in cut mark width were found, caution should be used in trying to classify individual cut marks as being inflicted by a particular implement, due to the overlap in cut mark width that exists between different knife types. When combined, both quantitative and qualitative analyses of cut marks should prove to be more useful in trying to identify a suspect weapon. Furthermore, the application of SEM can be particularly useful for assessing many of these features.     

Basic Social Rights, Constitutional Justice, and Democracy

Abstract.   The theory of rights is crucial as a means of relieving the tension between basic rights and democracy, and as a means of resolving the problem of allocating competence between the constitutional court and the legislature. To some theorists, no tension between basic rights and democracy exists, for the latter presupposes the former. To others, among whom I include myself, tension does exist, for basic rights, in lending protection to certain persons and groups, limit the possibilities of political decision. In this connection it is important to take up the problem of the necessary conditions for realizing basic rights. One of these conditions concerns the delimiting of the scope of institutional action that is found, so to speak, in the space between the constitutional justices and the legislature, the latter as representative of the popular will.     

In vivo facial tissue depth study of Chinese-American adults in New York City

This study examines facial tissue depth in adult Chinese-Americans. Using ultrasound, measurements were taken at 19 landmarks across the faces of 101 individuals aged from 18 to 87 years. Summary statistics are reported for a sample of 67 individuals of normal weight (as determined by a body mass index [BMI] of 19-25). Statistical analyses were used to assess relationships between tissue thickness, age, and BMI. Results indicate that no significant relationship exists between tissue thickness and age for males, and for only 3/19 points in females. Also, only four points showed significant relationships between tissue thickness and sex. However, significant relationships exist between BMI and tissue thickness at multiple points for both males and females. Compared to other American and Asian populations in the literature, Chinese-Americans generally had thinner facial tissue; though, this difference was not assessed statistically. Finally, data generated in this study will add to the body of knowledge concerning facial tissue depth variation in modern humans.     

中国汉族6-18周岁男性牙齿生长发育的年龄研究

目的研究牙齿钙化程度与年龄的关系,建立利用牙齿钙化程度推断中国汉族6～18周岁男性年龄的办程。方法通过对6568名6～18周岁汉族男性全口曲面断层影像上牙齿的钙化程度进行评分;将分级值及其对应年龄输入SPSS软件进行分析,建立推断年龄的方程模型;从研究样本外随机抽取已知年龄的样本160例进行卣测,,结果同名牙齿钙化评分值侧别间秩合检验结果P〉0．05;下颌左侧恒牙钙化评分值与年龄相关分析结果r值均存0．7以上,下颌同名牙间相关系数r均在0．9以上;所建回归模型拟合优度R^2=0．828,估计值标准误为1．23岁;阿测平均洪差为0．423±0．269岁。结论本研究所建立的方法准确可靠,可用于中国汉族6～18周岁男性人群的年龄推断。     

The police,crime, and economic theory: A replication and extension

Based on insights garnered from rational choice theory, Loftin and McDowall hypothesize that there is likely to be a reciprocal relationship, over time, within jurisdictions between police force strength and crime. Contrary to expectations, their ARIMA analyses of the association between total police force employment and the total crime rate for Detriot during the period of 1926 to 1977 produce null findings. As a result, they conclude that rational choice models are too simplistic to explain the relationship between the agency size and crime. It is our contention that this conclusion might be premature. We suggest that a failure to disaggregate total police force employment into its component sectors may be masking substantial reciprocal effects. The present investigation employs ARIMA techniques to model the reciprocal relationship between total, patrol, and detective police employment and total, property, and personal, robbery crimes in Milwaukee for the years 1930 to 1987. Consistent with previous research we report null findings between total police employment and total crime rates. However, the findings also reveal significant reciprocal relationships between the disaggregated measures of police size and crime. The implications of these results for rational choice theory are discussed.     

行纪中的给付障碍和法律救济——兼论《合同法》相关规则的问题及解决

对应于行纪之三人法律关系,在给付障碍的问题上,亦应当区分三个层面,即行纪人与第三人之间之实行行为层面的给付障碍,行纪人与委托人之间之行纪关系层面的给付障碍,以及行纪人与委托人之间之清算了结关系层面的给付障碍。在第一个层面,需要建立第三人损害清算制度,以此突破法律关系相对性的限制;在第二个层面,适用债法的一般性法律制度,通常为行纪法规制的重点;在第三个层面,需要正确认识行纪人的交付义务与佣金请求权和费用偿还请求权之间的法律关系,即交付义务与佣金请求权之间存在关联关系,而与费用偿还请求权则不具有关连性。委托人在主张权利方面,必须注意承认拟制和时效方面的限制。     

Clashing Rights, the Welfare of the Child and the Human Rights Act

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.     

Adult attachment as a risk factor for intimate partner violence: the "mispairing" of partners' attachment styles

This study examined the relationship between intimate partner violence and adult attachment in a sample of 70 couples. The attachment style of each partner and the interaction of the partners' attachment styles were examined as predictors of intimate partner violence. Additional analyses were conducted to examine violence reciprocity and to explore differences in the relationship between attachment and violence using continuous and dichotomous violence measures. Results of hierarchical regression analyses indicated the "mispairing" of an avoidant male partner with an anxious female partner was associated with both male and female violence. When controlling for partner violence, the relationship between attachment and violence was significant for males only. In addition, analyses using a dichotomized violence variable produced different results from analyses using a continuous violence measure. Clinical implications include focusing on the discrepancy between partners' needs for intimacy and distance within the couple as a strategy for treating intimate partner violence.     

法官释明权之理论阐释与立法完善

在百余年的发展历程中,法官释明权的功能已从救济弱势当事人演进到促进法官与当事人之间的沟通、避免突袭裁判的不意打击;到现代更发展为以达成共识为目的,促进当事人之间以及当事人与法院之间的共同讨论交流。法官释明权对促进实质正义与程序正义的实现有不可或缺的作用。完善我国有关的法官释明规范,是民事诉讼法修改的一项重要内容。     

Bone age assessment: the applicability of the Greulich-Pyle method in eastern Turkish children

The aim of this study was to investigate whether or not the Greulich-Pyle (GP) method is adequate for Turkish children. A group of 767 individuals (425 girls and 342 boys) between 7 and 17 years were studied. Bone age (BA) from plain radiographs of left hands and wrists by GP standards was estimated. The total mean differences between BA and chronological age (CA) for girls and boys were found to be 0.20 and -0.13 years, respectively. There were significant differences between BA and CA in age groups 7-, 8-, 10-, 11-, 12-, 13-, 15-, and 16-year-olds for girls and 7-, 10-, and 12-year-olds for boys. The results of this study suggest that the mean differences between BA and CA are low enough to be of no practical significance, and thus, for the time being unless any other methods will be proved more useful, this method could be used in all age groups.     

公私法的汇合与行政法演进

公私法的区分在西方各国行政法上有着不同的法律意义,当代社会生活的实际使得公私关系出现了胶着与合作的一面,这引发了公私法的交叉与汇合,并在行政法领域有诸多深刻表现,中国的实践也不例外。但从历史背景和法律现实上看,我们的理论并不充分,公私法的协调也差强人意。鉴此,应在尊重私权的前提下,在更新观念的基础上,积极探寻公私合作,梳理公私法关系。这般背景给中国行政法及相关理念引来了新的任务与思考。