Privacy Act of 1974; report of altered systems--HCFA. Notice of the global addition of three new routine uses to designated HCFA systems of records

HCFA is adding three additional routine uses to the Systems of Records specified in Appendix A. These routine uses will permit HCFA to disclose individual-specific information for the purpose of combating fraud or abuse in the health benefit programs administered by HCFA and for other compatible purposes. These new routine uses will permit HCFA to make disclosures as follows: (1) To a HCFA contractor, including but not necessarily limited to fiscal intermediaries and carriers under title XVIII of the Social Security Act, to administer some aspect of a HCFA-administered health benefits program, or to a grantee of a HCFA-administered grant program, which program is or could be affected by fraud or abuse, for the purpose of preventing, deterring, discovering, detecting, investigating, examining, prosecuting, suing with respect to, defending against, correcting, remedying, or otherwise combating such fraud or abuse in such program; (2) To another Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States, including any state or local government agency, for the purpose of preventing, deterring, discovering, detecting, investigating, examining, prosecuting, suing with respect to, defending against, correcting, remedying, or otherwise combating fraud or abuse in a health benefits program funded in whole or in part by Federal funds; and, (3) To any entity that makes payment for or oversees the administration of health care services, for the purpose of preventing, deterring, discovering, detecting, investigating, examining, prosecuting, suing with respect to, defending against, correcting, remedying, or otherwise combating fraud or abuse against such entity or the program or services administered by such entity, subject to certain conditions.     

期望损害赔偿的实现:替代交易的研究

在损害赔偿法中,替代交易是一种有效的计算期望损害赔偿的方法,其已经得到各国国内立法以及国际条约或示范法文本的支持。替代交易相对于传统的期望赔偿或实际履行有独特的理论优势和操作性便利,如接近合同履行后的地位、增加确定性、阻止或最小化间接损失的社会成本、有效分配市场风险等等。替代交易的构成体现为实体要素和程序要素,其中实体要素中合理性最为重要,实践中有必要将替代交易分为搜寻和实际选择两个阶段,而且替代交易无需经由法院或非诉讼程序。替代交易是一种任意性救济方式,只适用于不履行的情况,同时在其适用上不限于商事交易和货物交易等。我国未来的合同法修改应当将替代交易予以制度化,以使期望损害赔偿更具现实力,实现合同救济的目的。     

Medical device reporting--FDA. Final rule

The Food and Drug Administration (FDA) is issuing a final rule that requires manufacturers and importers of medical devices, including diagnostic devices, to report to FDA whenever the manufacturer or importer receives or otherwise becomes aware of information that reasonably suggests that one of its marketed devices (1) may have caused or contributed to a death or serious injury or (2) has malfunctioned and that the device or any other device marketed by the manufacturer or importer would be likely to cause or contribute to a death or serious injury if the malfunction were to recur. FDA is taking this action under the Medical Device Amendments of 1976. The final rule is intended to assure that FDA is informed promptly of all serious problems or potentially serious problems associated with marketed devices. FDA is the principal public health agency responsible for ensuring that devices are safe and effective. To carry out its responsibilities, the agency needs to be informed whenever a manufacturer or importer receives or otherwise becomes aware of information about device problems. Only if FDA is provided with such information will it be able to evaluate the risk, if any, associated with a device and take whatever action is necessary to reduce or eliminate the public's exposure to this risk. Depending on the facts and circumstances, these steps could include contacting the manufacturer or importer of the device and monitoring its voluntary actions to respond to the problem, initiating a consumer or user education program, or initiating regulatory action, such as injunction, seizure, or other enforcement action.     

Additional disability or death due to hospital care, medical or surgical treatment, examination, or training and rehabilitation services--VA. Final rule

This document amends the Department of Veterans Affairs (VA) adjudication regulations concerning awards of compensation or dependency and indemnity compensation for additional disability or death due to VA hospital care, medical or surgical treatment, examination, or training and rehabilitation services. Under this final rule, benefits are payable for additional disability or death caused by VA hospital care, medical or surgical treatment, or examination only if VA fault or "an event not reasonably foreseeable" proximately caused the disability or death. Benefits are also payable for additional disability or death proximately caused by VA's provision of training and rehabilitation services. This final rule is necessary to reflect Congress' recent amendment of 38 U.S.C. 1151, the statutory authority for such benefits.     

聚众哄抢财物与聚众“打砸抢”的刑法教义学

聚众哄抢财物行为通常成立聚众哄抢罪;哄抢使用中厂房的物资设备的,是聚众哄抢罪与破坏生产经营罪的想象竞合犯,以聚众哄抢罪定罪处罚;聚众是与哄抢并列的行为或者是哄抢行为的方式或状态,说明了聚众哄抢罪的必要共同犯罪特征;成立聚众哄抢罪未必要有首要分子组织、策划或纠集;聚众哄抢罪的对象是他人占有的动产或者不动产中可以分离的部分;哄抢的本质是公然抢夺或盗窃;不符合聚众哄抢罪的哄抢财物行为可认定为抢夺罪或盗窃罪;聚众哄抢罪与抢夺罪、盗窃罪的共犯有差异;哄抢人采取对人暴力或胁迫等方式,压制被害人反抗而哄抢财物的成立抢劫罪,聚众哄抢罪可以成立事后抢劫;聚众"打砸抢"是聚众实施某些寻衅滋事行为的特别规定;"致人伤残、死亡"应限制解释为聚众"打砸"人所致;"毁坏或者抢走公私财物"是抢劫罪的法律拟制,首要分子以外的人成立寻衅滋事罪(或与敲诈勒索罪、聚众哄抢罪、故意毁坏财物罪等的想象竞合犯)。     

Medical device reporting--FDA. Reproposal

The Food and Drug Administration (FDA) is issuing a revised proposal to require manufacturers and importers of medical devices to report to FDA whenever the manufacturer or importer has information that reasonably suggests, or a person alleges and the manufacturer or importer is aware of the allegation, that a device has caused or contributed to a death or serious injury or that a device has malfunctioned, if a recurrence of the malfunction is likely to cause or contribute to a death or serious injury. After FDA analyzes the results of its manufacturer complaint file inspection program, the agency will consider whether any reports in addition to those proposed in this rule are necessary and, if so, will propose additional reporting requirements.     

Investigational new drug applications; amendment to clinical hold regulations for products intended for life-threatening diseases and conditions. Food and Drug Administration, HHS. Final rule

The Food and Drug Administration (FDA) is amending the regulations governing investigational new drug applications (IND's) to permit FDA to place a clinical hold on one or more studies under an IND involving a drug that is intended to treat a life-threatening disease or condition affecting both genders. The amendments permit the agency to place a clinical hold on such studies if men or women with reproductive potential who have the disease or condition are otherwise eligible but are categorically excluded from participation solely because of a perceived risk or potential risk of reproductive or developmental toxicity from use of the investigational drug. This rule was developed in response to the past practice of excluding women with reproductive potential from early clinical trials because of a perceived risk or potential risk of reproductive or developmental toxicity. The final rule does not impose requirements to enroll or recruit a specific number of men or women with reproductive potential.     

Medicare and Social Security: fraud and abuse; civil money penalties for misuse of certain terms, symbols and emblems--HHS. Final rule

This final rule implements section 428(a) of Public Law 100-360 which authorizes the imposition of civil money penalties for the use--in advertising, solicitations or other communications--of certain words, letters, symbols or emblems associated with the Department of Health and Human Services' Social Security and Medicare programs in a manner that the user knows, or should know, would convey a false impression that (1) the communicated item was approved, endorsed or authorized by the Department or its programs, or (2) the responsible person or organization has some connection with, or authorization from, the Department or these programs. This rulemaking is designed to assist in protecting citizens from misrepresentations concerning the services offered and programs administered by the Social Security Administration and the Health Care Financing Administration.     

实体与程序之调和：证明妨碍的客观要件探究

证明妨碍是指当事人因可归责于对方当事人或第三人诉讼中或诉讼外、故意或过失的作为或不作为,致使自己的证明行为陷入困难或不能。构成证明妨碍的客观要件相对较为复杂,而且在实体法和程序法中均有规定。不论是诉讼前或诉讼中的作为或不作为,均可以构成证明妨碍行为。证明妨碍行为的结果,应当达到当事人证明不能或证明困难而使案件事实无法查明的状态。而且,证明妨碍行为与待证事实证明不能或证明困难的状态之间应当具有因果联系。     

Equity: Effects of Input and Outcome Orientation on Taking, Giving, and Dividing Money

Participants who were more inclined to consider ambiguous work elements as inputs (input-oriented or Type-I persons) or as outcomes (outcome-oriented or Type-O persons) were presented with situations in which they had delivered a higher or lower work performance than another person. They were asked to take money for themselves, give money to the other person, and divide a fixed sum of money between themselves and the other as reward for the performances. The specific combination of (input or outcome) orientation of the participant and the type of transfer (giving, taking, or dividing) determined the reward the participant allocated to him- or herself and/or to the other person. Type-I persons showed an egocentric bias in their allocation behavior, whereas Type-O persons allocated according to a maximin strategy.     

论容留卖淫罪、容留吸毒罪的“容留”

容留卖淫罪、容留吸毒罪的"容留"指为卖淫、吸毒者提供行为场所,不包括提供其他便利行为。提供场所后才明知场所使用者有卖淫、吸毒活动不制止或不中止提供场所是否构成容留应具体情况具体分析,不能一概而论。场所的本质特征是行为人有权控制且能控制。共同控制人在共同控制的场所中卖淫或吸毒,其他共同控制人知情不制止、甚至为其放风报信不构成容留,明知场所的共同控制人容留卖淫或吸毒不制止,只有在行为人事先知情事中不制止才构成容留共犯。     

New judicial interpretation of PRC Anti-Unfair Competition Law issued

The Supreme People's Court of China has announced the firstjudicial interpretation of the PRC Anti-Unfair Competition Law(‘the Law’), to clarify the ambiguities in the applicationof the Law. Issues covered include passing off by the use oftrade names, packaging or trade dress of well-known products,or the use of the business name or personal name of anotherenterprise or individual, false or exaggerated advertising,and unauthorized use of trade secrets.     

论禁止歧视

歧视是指被法律禁止的、针对特定群体或个人实施的、其效果或目的在于对承认、享有和行使基本权利进行区别、排斥、限制或优待的任何不合理的措施,即歧视的表现形式是在相同的情况下无合理理由而恣意取消或损害特定群体或个人平等享有权利的任何区分、排除或选择的措施。法律禁止歧视的目的是对少数群体或具备该群体特征的个人基本权利的保护以实现法律的公正。禁止歧视与平等在本质上是一致的,因为平等并不反对任何差别,但却反对没有合理依据的区别对待。如果差别有正当的理由并且是为了实现合法目的,则不构成歧视而是法律许可的合理差别。     

论公司、企业人员受贿罪的客观特征

1997年刑法对公司、企业人员受贿罪的修订影响了对该罪内涵意义的理解 ,特别是需要重新考察其客观要件。公司、企业人员受贿罪既侵犯了公司、企业经营活动的公正竞争交易秩序 ,又侵犯了公司、企业工作人员的廉洁性。该罪在客观方面表现为公司、企业的工作人员 ,利用职务上的便利 ,索取他人财物或者非法收受他人财物 ,为他人谋取利益 ,或者在经济往来中 ,违反国家规定收受各种名义的回扣、手续费 ,归个人所有 ,数额较大的行为     

修理、更换、回收利用是否构成专利权侵害

对专利产品进行修理、零部件更换或者回收利用是否构成专利权侵害，必须以专利权利要求保护的范围作为最基本的判断标准；即使对专利产品进行修理、零部件更换或者回收利用构成再造，也并不必然侵害专利权；在处理对专利产品进行修理、零部件更换或者回收利用是否专利权侵害的问题时，关键是处理好以生产经营为目的提供零部件的行为是否构成专利权间接侵害。     

Continuation of benefit payments to certain individuals who are participating in a program of vocational rehabilitation services, employment services, or other support services. Final rule

We are publishing final rules that amend the rules for the continuation of disability benefit payments under titles II and XVI of the Social Security Act (the Act) to certain individuals who recover medically while participating in an appropriate vocational rehabilitation (VR) program with a State vocational rehabilitation agency. We are amending these rules to conform with statutory amendments that extend eligibility for these continued benefit payments to certain individuals who recover medically while participating in an appropriate program of services. These include individuals participating in the Ticket to Work and Self-Sufficiency Program or another program of vocational rehabilitation services, employment services, or other support services approved by the Commissioner of Social Security. We are also extending eligibility for these continued benefit payments to students age 18 through 21 who recover medically, or whose disability is determined to have ended as a result of an age-18 redetermination, while participating in an individualized education program developed under the Individuals with Disabilities Education Act with an appropriate provider of services. Providers of services we may approve include a public or private organization with expertise in the delivery or coordination of vocational rehabilitation services, employment services, or other support services; or a public, private or parochial school that provides or coordinates a program of vocational rehabilitation services, employment services, or other support services carried out under an individualized program or plan.     

刑罚的正当性探究——从权利出发

刑罚权配置和运作的正当性,应从个体性权利出发进行分析和论证。刑罚的适用即意味着自然人或者单位重大权利的剥夺或者限制,而这类权利应否被剥夺或者限制以及在何种程度上被剥夺或者限制,应通过这类权利的性质来认识和分析。在犯罪设置、刑罚制度方面,都应从个体性权利视角来检验制度、规范和解释结论的正当性。     

住宅小区车位、车库的性质及其权利归属研究——兼评《物权法》第74条

住宅小区车位、车库具有构造上、使用上和法律上的独立性,在性质上属于建筑物区分所有权的专有部分,可以成为建筑物区分所有权的客体。不能依车位、车库的建筑面积是否计入商品房的公摊面积或者车位、车库的建造成本是否摊入住宅开发成本来判断车位、车库的权利归属,也不能依开发商与业主之间的约定来确定车位、车库的权利归属。车位、车库应由业主法定地共有。     

Medicaid integrity program; limitation on contractor liability. Final rule

The Medicaid Integrity Program (the Program) provides that the Secretary promote the integrity of the Medicaid program by entering into contracts with contractors that will review the actions of individuals or entities furnishing items or services (whether fee-for-service, risk, or other basis) for which payment may be made under an approved State plan and/or any waiver of the plan approved under section 1115 of the Social Security Act; audit claims for payment of items or services furnished, or administrative services furnished, under a State plan; identify overpayments of individuals or entities receiving Federal funds; and educate providers of services, managed care entities, beneficiaries, and other individuals with respect to payment integrity and quality of care. This final rule will provide for limitations on a contractor's liability while performing these services under the Program. The final rule will, to the extent possible, employ the same or comparable standards and other substantive and procedural provisions as are contained in section 1157 (Limitation on Liability) of the Social Security Act.