集团诉讼问题研究——一个比较法社会学的分析

集团诉讼是当代世界共同关注的重要的法律和政治问题。然而,各国对于集团诉讼的态度、政策、制度设计和实践却是千差万别,显示出多元化的趋势。本文以功能主义分析方法探讨了通过不同的法律制度解决这一相同的时代课题的可能;分析了当代世界各国解决群体性纠纷和集团诉讼问题上的差别及其原因,从政治和司法体制、诉讼文化、法律技术与传统、社会经济发展程度以及法律职业等角度比较了集团诉讼运作的社会条件和移植的可能性;并指出了经济全球化背景下集团诉讼问题的重要性及各国应有的政策立场。本文将解决中国群体性纠纷的问题意识贯穿始终,主张充分考虑社会现实,避免简单移植某一种集团诉讼制度并依赖其解决各种群体性纠纷,而应以一种多元化的思路应对纠纷解决的社会需求和经济全球化的挑战。     

ROMANCING THE COURT

Problem‐solving courts, created at the end of the twentieth century, make court‐based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court‐based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem‐solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through the lens of specific examples from family court—the original problem‐solving court—leads to the conclusion that neither the structural issues that courts face, such as overwhelming numbers of cases, nor the momentous societal issues that problem‐solving courts have recently begun to shoulder can be adequately addressed through court‐based solutions. The factors that allegedly distinguish new problem‐solving courts from earlier exemplars, especially the family court, are both less unique and less successful than they have been portrayed by problem‐solving court enthusiasts. These factors alone fail to justify the expansion of problem‐solving courts without further evidence of their effectiveness. Moreover, the potential dangers inherent in problem‐solving courts are not theoretical. By examining illustrative examples from the history of the family court, the dangers become clearly apparent.     

The National Labor Relations Act and health care institutions: the persistent paradox.

In the wake of 1974 amendments to the NLRA, nonprofit health care institutions have been involved in a steady stream of labor relations cases. This article examines some of the new labor relations problems facing these institutions, and it provides valuable information and analysis to help administrators keep abreast of the legal and practical developments stemming from the cases.     

当前警务改革现实问题与改革路径探究

当前,我国警务改革面临警力编制少,警力资源配置失衡,机关化倾向突出,警务机制运行不畅等现实问题。对此,本文提出如下建议：扎实做好基层基础工作创新,着力破解＂警力不足＂的难题;推进管理机制创新,破解＂机制不畅＂难题;推进科学技术创新,挑战＂技术手段滞后＂难题;提高打防工作创新,破解＂形势考验＂难题。     

问题图式获得理论及其在教学中的应用

问题图式是能在问题解决过程中起核心作用的大的知识单元,它使我们对问题解决表征机制的认识更为深刻.在阐述问题图式获得机制方面,研究者提出了结构映射理论和语用图式理论,同时发现类比问题解决和样例学习是获得问题图式的两条有效途径.因此,要想在教学中有效地促进学生问题图式的获得,就要增加学生类比问题解决和样例学习的机会,比如提倡图式图教学;在样例教学初期,给予学生适当的线索提示;迁移教学中增加源问题类比物的数量等.     

高校信息化建设中的问题与对策

高校的信息化建设是我国教育领域发展中的重要组成部分.高校信息化已走过了20多年的发展历程,取得的成绩有目共睹,但发展不平衡也给当前高校信息化进程带来了诸多的问题.本文以全国各高校信息化发展规划为依据,分析了高校信息化建设对于高校发展的重要作用以及凸显的关键问题,并提出了相关对策与解决方案.     

Property and the human body: a proposal for posthumous conception

There is no greater error in law and bioethics than the continuing opposition to applying the concept of property to posthumous conception cases and the human body generally. The aim of this article is to challenge this error and the assumptions underpinning it. The language of property, conceived of as a "web of interests", can be used to capture and identify the social, moral and ethical concerns that arise in cases concerning the human body, a position that finds support from a correct reading of the early High Court of Australia's decision in Doodeward v Spence (1908) 6 CLR 406. However, a key issue on which the language of property is silent is how to quantify the various competing interests in the posthumous conception case: the concept is useful only insofar as it provides the device for capturing the entirety of the posthumous conception problem.     

论测谎证据在民事诉讼中的可采性

事实认定对于司法裁判具有关键作用，民事诉讼中事实的认定是靠证据来支撑的。测谎技术本身是科学的，关键在于怎么科学地去用它。测谎证据具有证据能力，可以归于鉴定结论之列。测谎证据在民事诉讼中的应用不仅具有良好的实践基础，而且也不存在理论障碍，测谎证据的应用能为解决陷入事实认定僵局的疑难案件打开一扇希望之门。对待测谎证据，我们正确的态度应该是在民事诉讼中严格规范测谎证据的适用条件、范围和程序，并适时推动测谎证据立法化。     

Central Issues in Jurisprudence

Law schools have been criticised as being behind the times in predominantly adhering to the traditional lecture format combined with the casebook method. In so far as these techniques simply transmit prescribed content to students, this comes at the expense of teaching the skill crucial for success in examinations and in legal practice: problem solving. Active teaching and learning techniques seem likely to better foster the development of this skill. However, in an environment where transmission-based lectures are the norm, and students are anxious to absorb content in the (mis)belief that this holds the key to success, would they welcome such active learning or resist it? To assess this, I delivered three lectures to second year undergraduate students in the same cohort of the Law of Contract, each of which used varying degrees of active learning techniques: the first, the maximum amount practicable, the second a combination of active learning techniques and techniques traditionally used in law school lectures, and the third no active learning techniques at all. By asking students to comment on the extent to which they were engaged in the lectures and how the use of time enabled them to learn, to understand contract law, and to develop their own problem-solving skills, I aimed to see how they would react to the different techniques. Supported by the qualitative results of this pilot study, the article suggests that (1) the incorporation of active learning exercises – including those based on problems – into large lectures is perceived by students as beneficial for their learning, and even preferred over passive methods; and (2) in the typical law school environment, law teachers could also consciously mitigate the relentless pressures affecting law students by making classes more conversational, relaxed and entertaining.     

Ultra-trace analysis of illicit drugs from transfer of an electrostatic lift

This article introduces a method of collecting and analysing drug residues that integrates both electrostatic lifting and nanomanipulation-coupled to nanospray ionization mass spectrometry. The application of this hyphenated technique exhibits a useful means of collection and extraction of drug residues with ease and efficiency along with decreased limits of detection. From this method, it will be shown how increased sensitivity of analysis and lower limits of detection for drug analysis can be achieved. The same principles that allow lifting of dust prints by electrostatic lifting can be applied to lifting drug residues. Probing of the drug residues by nanomanipulation occurs directly from the lift, which provides a great platform for extraction. Nanomanipulation-coupled to nanospray ionization-mass spectrometry has been used for the extraction of trace analytes in previous experiments and is known as a very sensitive technique for the detection of ultra-trace residue. This method will demonstrate the electrostatic lifting of drug residue particles from a surface followed by extraction and ionization with nanomanipulation-nanospray ionization. The utility of this novel methodology allows for a more productive analysis when presented with ultra-trace amounts of sample.     

Driving Priorities in Risk‐based Regulation: What's the Problem?

Both risk‐based and problem‐centred regulatory techniques emphasize giving priority to matters that are serious and important. In the case of both risks and problems, however, issues of identification, selection, and prioritization involve inescapably normative and political choices. It is important, therefore, to understand why regulators target the risks and problems that they do; which factors drive such choices; and how regulation is affected when these factors pull in similar or opposite directions. Such an understanding provides a fresh framework for thinking about the challenges of both risk‐based and problem‐centred regulation. The analysis presented here does not oppose either risk‐based or problem‐centred regulation, but it illustrates why neither is as straightforward as simple calls for ‘better regulation’ may suggest, and it proposes ways in which key aspects of those challenges may be addressed.     

Implementation of the Americans with Disabilities Act in State Police and Highway Patrol Agencies: Results of a National Survey

This article provides an empirical analysis of Americans with Disabilities Act (ADA) implementation within the law enforcement profession. Specifically, the study reports results from a national survey of state police/highway patrol agencies regarding practical implementation of the ADA. The data is analyzed in terms of population size and collective bargaining status. Results of this endeavor indicate that implementation of the ADA within law enforcement is difficult, especially as applied to the work of sworn personnel. These challenges are somewhat diminished when applied to non-sworn personnel such as dispatchers, administrators, and clerical personnel. The most substantial obstacles to implementation of the ADA within law enforcement is not associated with political officials or administrators. Instead, most arise from the lack of training and vague legislative language and regulatory standards. Smaller states and those without collective bargaining report lower levels of accommodation; however, there are few statistically significant differences in terms of population and collective bargaining.     

THE CHALLENGES FOR THE ENFORCEMENT AGAINST COPYRIGHT VIOLATIONS IN CHINA UNDER THE TRIPS AGREEMENT

While piracy is a serious problem in China, it is also a global concern. Within the domestic and the TRIPS context, this article discusses various forms of copyright violations in China, their impact on the enforcement of the Chinese Copyright Law, and their causes. In particular, this article discusses the unique aspects in China which make the enforcement of Copyright Law extremely difficult; it also analyzes how the Criminal Law should be used in the combat against piracy, and how China interprets the TRIPS Agreement as it is applicable to China. In addition, this article explores several means that are likely to become the future solutions of the problem of copyright violations in China.     

德日共犯制度实践思维当中的“主体间”与“单方化”——我国共犯制度思维合理性的域外视角审视

在日本共犯制度实践思维当中，以“何为共犯之‘共同”’这一提问为代表的“主体间思维”，以及由此产生的犯罪共同说、行为共同说和所谓共同意思主体说等共同犯罪本质观念一直被作为解释参与犯成立条件和解决和诸多疑难问题的当然前提。然而，“主体间思维”在运用过程中存在“学说贯彻不彻底”、“主体间思维超越”和“学说内部分歧”等三种理论现象，充分说明了其解释能力的有限性。相比之下，德国共犯实践中的“单方化思维”对于共犯问题的解释解决显然具有“主体间思维”无可比拟的优势。这一对比告诉我们：同样在我国共犯制度实践中被运用着的“主体间思维”并不具有当然的合理性。     

A review of the methodological aspects of aspartic acid racemization analysis for use in forensic science.

Accurate age determination of adult cadavers and human remains is a key requirement in forensic practice. The current morphological methods lack accuracy and precision, require specialist training and are costly. The use of aspartic acid racemization (AAR) in human dentine provides a simple, cost-effective solution and the method can achieve accuracies of +/- 3 years at best. Currently, there are differences in AAR methodology between laboratories which produce different results on the rate of racemization in teeth. These inconsistencies must be resolved if the technique is to be successfully applied to age determinations in forensic cases. This paper reviews the differences in protocol which have been used, discusses how each method will affect the results obtained from AAR analysis and gives recommendations for optimization of the methological protocol as a first step towards international standardization.     

Will firms consider a European optional instrument in contract law?

The diversity of contract laws is said by the Commission to discourage cross-border trade and hinder the development by SMEs of a pan-European commercial policy. An optional instrument containing both facilitative general contract rules and mandatory consumer protection rules, one of the solutions proposed by the Commission, is gaining rapid support from key stakeholders. Drawing from firms?? own views on the problems of legal diversity, and insights from organisational science, this article sets out the circumstances in which firms will likely consider a European optional code. Results are mixed: some firms may consider it, while others may ignore it. Much depends the firm??s aspirations (i.e. SMEs cannot be assumed as-yet to have pan-European aspirations), how the firm perceives the problems of legal diversity, and how it searches for and decides upon solutions. It would appear that a European optional instrument may not be as useful or widely considered as its proponents would like to believe.     

Administrative Justice in the Penitentiary: A Report on Inmate Grievance Procedures

The majority of prisons today have an internal grievance mechanism that gives inmates an opportunity to air complaints and seek solutions to individual and institution-wide problems. This study reports on the way the mechanism functions at two Illinois state prisons—one minimum security and one maximum security. The main findings are: (1) that the mechanism is heavily and repetitively used by only a portion of the inmate population, (2) that the grievances filed range widely in type as well as in merit, although it is clear that there is much frivolous activity, (3) that inmates win only a small percentage of their cases, either at the first-instance level or on appeal, and (4) that among both line prison staff (at least at one of the prisons) and inmates there is considerable dissatisfaction with the process, although a minority of prisoners and the higher echelon prison administrators can be counted on for more favorable assessments. The article goes on to compare these findings with the generally articulated objectives of the grievance process and concludes with a series of suggestions that have been made for improving its workings.     

Transfer of advanced manufacturing technology from Canadian universities to industry

Although advanced manufacturing technology (AMT) is a key factor in improving North America's industrial competitiveness, there is a problem in transferring it from university to industry. This study, conducted for a Canadian governmental agency, addresses the problem by querying Canadian professors, university-liaison officers, and administrators of intermediary (broker) organizations in order to uncover the processes of AMT transfer; that is, the ways in which technical knowledge embodied in inventions is converted into outputs used by companies. Four processes, in which the critical entities are professors, universities, intermediary organizations, and spinoffs, account for what has been transferred While the first is by far the most significant currently, the third has a high future potential. An analysis of barriers suggests that while some probably inhibit all four transfer processes, others have their impacts on only one specific process. If we are going to raise the number of transfers, we must work more diligently to pinpoint the causes for low levels of transfer. Studying the barriers to university transfer in general should therefore yield information on which barriers are associated with which processes.     

Analysis and Classification of Problem Statements in Technology Transfer

For many years, the U.S. Government has encouraged the transfer of technologies developed through taxpayer funded endeavors to the commercial sector of the U.S. economy. The Regional Technology Applications Board, based at NASA's Marshall Space Flight Center, is an organization with technology transfer responsibilities. The Board receives technology transfer assistance (TTA) requests from many private-sector firms. The Board relies heavily on a problem statement from the requestor of technology assistance in determining an appropriate solution to the requestor's needs. However, the problem statements contained in these requests are often vague, ambiguous, or repetitive. This study reports on a method developed to analyze and classify problem statements that have been received by the Board so that additional understanding of the nature of these problems is obtained. One thousand one hundred past problem statements were analyzed using a content analysis method. The hierarchical classification structure developed during this project includes classes, sub-classes, and sub-sub-classes, allowing for differentiation of problem statements based upon key elements contained within the statements. Previously, no method for analysis and classification of problem statements had been documented. The results of the study indicate that problem statements can be analyzed and classified. The problem statement classification structure created through this project provides a vehicle for problem statement assignment, thereby lending additional form to the problem definition process. The study also provides an understanding of the frequency and distribution of TTA problem statements received by the Board.     

机动车车体潜在标识符的检验

机动车的发动机和车架等商品序列号是其原始标识符，一般是通过对金属表面冲压的方式形成的，是表明商品唯一性的代码。对已损毁的机动车车体原始标识符的检验鉴定，是侦破机动车盗抢案件的关键性技术环节。了解并掌握损毁、篡改机动车车体标识符的常用方法，改进并优化对潜在标识符的显现技术，进而提高此类案件的侦破率，是刑事技术领域的一项重要工作。