论“本质错误”——以罗马法为中心

在罗马法中,本质错误与身份错误、行为性质的错误、标的物错误并称为使行为无效的四种实质性错误。本质错误与材料错误相关又不等同于材料错误。本质错误的内涵见于D.18,1,9,2中的"醋为酒卖"案,是在社会经济功能影响下的标的物之内在特性发生错误。本质错误的外延见于"古杯"案及D.18,1,11、D.18,1,14等文本,涵涉了大部分的材料错误和性别错误,并可以作为一种兜底条款适用于那些对诸如艺术品价值、作者发生错误的情形。本质错误在近代演化为法国法的"实质错误"、意大利法的"本质上的错误"、瑞士法的"重大错误"、德国法和我国台湾地区法的"性质错误",在赋予法官自由裁量权的功能上,它们和中国大陆民法的错误制度殊途同归。     

Fatal intoxications in the Nordic countries. A forensic toxicological study with special reference to young drug addicts

Fatal intoxications in the 15-34 age group in the five Nordic countries during the years 1984 and 1985 (Sweden only in 1984) were investigated. The known drug addicts were studied separately. The highest incidence of intoxications, calculated per 10(5) population, was found in Finland (11.3), followed by Denmark (10.3), Sweden (8.5), Iceland (7.2) and Norway (6.6). The percentage of intoxications caused by drugs was 92 in Denmark, 71 in Norway, 66 in Sweden, 50 in Finland and 17 in Iceland. Ethanol intoxications were seen 5-7 and 2-3 times as frequently in Finland and in Iceland, respectively, than in the other three countries. Carbon monoxide intoxications accounted for two-thirds of all fatal intoxications in Iceland. Drug addicts accounted for 62% of all fatal intoxications in the Danish material. The corresponding figures were 33% in the Norwegian, 16% in the Swedish and 5% in the Finnish material. No deaths in drug addicts were found in Iceland. Most drug addicts in Denmark, Norway and Sweden died of hard drugs and most in Norway and Sweden, from heroin or morphine, whereas in Denmark other strong analgesics, such as methadone, dextropropoxyphene and ketobemidone, accounted for 40% of all hard-drug-related fatal intoxications. To a certain extent the results reflect differences in the legal autopsy routines in the various Nordic countries. However, the ascertainment of drug addicts is assumed to be near-complete in each country.     

Sequence polymorphisms at the DXS6789, DXS8377 and DXS101 loci in three Asian populations

Sequence analyses of X-chromosomal short tandem repeats, DXS6789, DXS8377 and DXS101 were performed for representatives of 3 Asian populations: 130 Japanese, 61 Bangladeshi and 89 Indonesian males. At DXS6789, the sequence polymorphism was found in 7 alleles in the Japanese, 3 in the Bangladeshis and 3 in the Indonesians. At DXS8377, the sequence polymorphism was found in 13 alleles in the Japanese, 9 in the Bangladeshis and in all alleles identified in the Indonesians. At DXS101, the sequence polymorphism was found in 7 alleles in the Japanese, 9 in the Bangladeshis and 8 in the Indonesians. Because sequence polymorphisms were found in most of the alleles at the DXS6789, DXS8377 and DXS101 loci, it was concluded that sequencing was essential for identifying the alleles at these loci in all 3 Asian populations.     

物权法定原则

物权法定原则决定了物权法的基本性质与特征,也严格地限制了当事人在创设新型物权、改变既有物权之内容等方面的意思自由。物权法定原则的内涵是指物权的种类、内容、效力以及公示方法由法律规定,原则上不能由法律之外的规范性文件进行规定,也不能允许当事人自由创设物权的种类以及确定物权的内容、效力和公示方法。作者比较了物权法定模式的表述方式和基本功能,并认为我国物权法中物权法定中的“法”应当被主要限定为法律;司法解释应当具有一定的创设物权的功能;判例不能创设物权。当事人关于物权设定的约定违反物权法定原则的法律后果,应当根据不同的情况来确定。     

Public Beliefs in the Causes of Wealth and Poverty and Legitimization of Inequalities in Russia and Estonia

The article analyzes the attributions of the causes of poverty and wealth in Russia and Estonia in 1991 and 1996 and their determinants. Among the latter are the perceived actual justice of the society, the perceived size of the middle class, and the personal position in the system of inequalities. Despite the economic hardships and a rise in inequalities in both countries, individualistic explanations of wealth and poverty have increased over the 5 years between the surveys. At the same time respondents in both countries demonstrated a growing awareness of the importance of starting positions and connections to achieve wealth. The perceived middle class has a significant effect on attributions of poverty but not on wealth. Russians in Estonia have a particular bias against wealth, whereas non-Russians in Russia are more likely to justify wealth on the basis of individual merit. Explanations of poverty and wealth in Estonia are more rooted in the factors of socialization (age, education, and gender), whereas in Russia they are more rooted in the changes in the family financial circumstances between 1991 and 1996. There was a general increase in support for government intervention in distribution in both countries.     

Forensic-medical obstetric-gynecological examinations in cases on professional delinquency of medical personnel

We studied the trend in the number of forensic-medical examinations in trials against obstetricians and gynecologists conducted in Primorsky Region in 1997-2005. Most typical defects in obstetric-gynecological care are characterized. These cases are analysed in terms of forensic-medical practice. Detection and forensic-medical analysis of the above defects contribute to optimization of the diagnosis and treatment both in obstetric-gynecological practice and in wide medical practice.     

Methamphetamine and amphetamine concentrations in postmortem rabbit tissues

The feasibility of detecting methamphetamine and its major metabolite, amphetamine, in postmortem tissues over a 2-year period was examined. It is important to determine if the abuse and toxic effects of drugs can be proved from evidence found in decayed, submerged, or stained tissue materials. The blood, urine, liver, skeletal muscle, skin and extremity bones from rabbits given methamphetamine intravenously were kept at room temperature, under 4 different conditions: sealed in a test tube, dried in the open air, submerged in tap water and stained on gauze. Methamphetamine was present in all the samples, with slight change in concentration in case of sealed and air dried tissues. Changes varied in bones kept in water. There were considerable decreases in methamphetamine in blood and urine stains. Despite long term storage, drug abuse and/or toxicity could be determined, in all tissues examined.     

Seclusion: The perspective of nurses

Knowledge of how nurses experience the process of secluding a patient can be useful in improving the quality of patient care and in the prevention of work related stress in nurses. This study describes personal experiences of nurses throughout the seclusion process. The emotions which came to surface in semi-structured interviews with 8 nurses were categorized in three main themes (Tension, Trust and Power) and a stress response curve was identified in the seclusion process, with specific feelings in each phase. Feelings denied in former studies such as feeling superior, anger and disgust were found in the interviews in this study.     

Carbon monoxide-related deaths in a metropolitan county in the USA: an 11-year study

Carbon monoxide (CO) poisoning as a cause of death is well documented in industrialized countries. The objective of this study was to compare demographic data in deaths due to accidents (in fires) and suicides in the same population between 1988 and 1998. Furthermore, the potential effect of a community wide education effort regarding safety in the home was assessed. Postmortem reports were reviewed for all deaths examined at the Office of the Cuyahoga County Coroner in Cleveland, OH, USA. During the study period, there were 209 accidental deaths due to fires in the home (6.5% of all accidents in the home) and 182 CO deaths by suicide (9.8% of all suicides). Demographic characteristics of the two groups differed: while males represented the majority of cases in both groups (55% of accidents, 70% suicides), race specific death rates were higher for whites than blacks (18/100,000 white, 3/100,000 black) in suicides compared with 29/100,000 deaths for blacks and 11/100,000 for whites in accidental cases. Fire deaths were prevalent in the young (0-9 years) and old (>60) whereas in the suicide group the age specific death rate was highest for those over 70 years. The majority of fire deaths occurred in the city of Cleveland but suicides were prevalent in the suburbs. More fire deaths occurred in December than any other month whereas more suicides occurred in April. In 1992, there was a community wide effort to provide free smoke detectors to residents in Cleveland. In 1992, there were 4.2/100,000 fire deaths in the city. This decreased to 0.6/100,000 in 1996, increased to 1.2/100,000 in 1997 followed by a decrease to 0.8/100,000 in 1998. This suggested that the program may have aided in decreasing these types of deaths. Deaths due to fires in the suburbs were <1/100,000 throughout the study period.     

Sudden infant death syndrome: Histological studies on adrenal gland and kidney

Histological observations were made on the adrenal glands and kidneys in ten cases of sudden infant death syndrome (SIDS). The amount of fetal cortex was excessive in the adrenal glands and many glomeruli of fetal form were observed in the kidneys. These findings suggest that the adrenal glands and the kidneys in SIDS cases are more or less immature in development. The immature development in these organs, especially in the adrenal glands, was considered to play a role in the cardiac or respiratory mechanisms in SIDS.     

永佃权的历史考察及其当代价值

本文对中外永佃权的历史做了粗略的梳理 ,以期辨正学界对永佃权某些方面的误解。以此为据 ,进而阐明永佃权的当代价值。在考察中国和国外法律史的过程中 ,采用可靠的史料是重要的 ,而使用该国文化中特定的语言系统又是必须的。中国古代存在永佃制 ,但绝没有永佃权 ;中国的永佃制萌芽于隋唐而非秦汉或北宋 (英宗 ) ;永佃权虽然生成于私有制的土壤 ,但对我国物权法中的农地立法 ,仍有借鉴的价值。     

对物诉讼与我国的船舶扣押法律制度

对物诉讼源于罗马法,却只在英国得到延续,并在其海事诉讼中得到巨大发展.随着英国殖民者将对物诉讼制度带到其殖民属地,移植法律与本地法律互相作用,逐渐发展出英美法系各国目前各具特色的扣船制度,其中最有代表性的莫过于英美两国的对物诉讼制度.我国的扣船制度既坚持了对人诉讼的传统,又大胆吸收了对物诉讼制度的合理内涵,反映了国际船舶扣押立法中对人诉讼与对物诉讼相互融合的良性发展态势.     

Reconsideration of the sequence of rigor mortis through postmortem changes in adenosine nucleotides and lactic acid in different rat muscles

We examined the changes in adenosine triphosphate (ATP), lactic acid, adenosine diphosphate (ADP) and adenosine monophosphate (AMP) in five different rat muscles after death. Rigor mortis has been thought to occur simultaneously in dead muscles and hence to start in small muscles sooner than in large muscles. In this study we found that the rate of decrease in ATP was significantly different in each muscle. The greatest drop in ATP was observed in the masseter muscle. These findings contradict the conventional theory of rigor mortis. Similarly, the rates of change in ADP and lactic acid, which are thought to be related to the consumption or production of ATP, were different in each muscle. However, the rate of change of AMP was the same in each muscle.     

Gender differences in the dispersal of children in northern Sweden and the northern USA in 1850

In the course of time families disperse and kin relationships change. In this study gender differences in spatial dispersion of adult children from their fathers were investigated in two areas of the world in 1850: the Skellefteå region in northern Sweden and the northern part of the USA, both largely rural populations. The results from the Skellefteå region where data on both genders were available were used to estimate gender differences among a native born population in the northern USA where women were often not followed in the sources after marriage. Most adult children resided in the same place as their fathers, but the distances separating relatives were greater in the USA. However, the proportion of adult sons living in the same locality as their fathers was the same in both. More daughters than sons were located elsewhere in Skellefteå and probably also in the USA. Although sisters in Skellefteå joined each other in places separate from their parents, men lived in patrilineal clusters to a greater extent than women due, in part, to patrilineal inheritance and virilocal marriages. Various reasons for these patterns are discussed and their implications for kin networks discussed.     

Hypophyseal damage in persons with cerebrocranial injuries and who died in the hospital

The pituitary was examined in patients with craniocerebral injuries who died in hospital in various periods after treatment. Control group consisted of victims died at the site of accident. The results indicate the significance of examining the pituitary in craniocerebral injuries for the diagnosis of thanatogenesis, particularly in patients died in hospital. Causes of traumatic changes in the organ were determined, highly incident in the practice of forensic medical experts: directly during injury, as a result of skull bone fractures; during development of dislocation syndrome and in disorders of blood and lymph circulation in the brain matter; resultant from augmenting traumatic edema of the brain.     

冠心病猝死的病理学研究——附128例尸检分析

本文报道128例冠心病猝死的法医病理学研究结果。其中冠脉病变4级63例,3级26例,2级29例。3级以上病变者斑块分布多较广泛。各支病变中以左前降支最常见。并发新鲜血栓形成者18例,斑块内出血17例,急性心肌梗死仅2例。36例冠脉斑块有炎性细胞浸润。56例见心肌间质纤维化或小灶疤痕形成。指出虽然我国冠心病发病率较低,但仍是猝死最常见的原因,尤以中壮年男性多见;多数病例无明显诱因而于睡眠中猝死。对冠心病猝死发生的特点、冠脉和心肌病变及病理诊断等进行了分析讨论。     

论过失犯形态的原因自由行为

相对于认定故意犯形态的原因自由行为有诸多疑难而言,在过失犯形态的原因自由行为之中承认原因行为的实行行为性并没有太多争议。但无论如何,过失犯形态的原因自由行为至少在表象上有别于一般的过失犯,其特点就在于可以划分为原因行为和结果行为这两个阶段,而在结果行为阶段又的确是丧失了责任能力甚至是行为能力。相关判例印证了在自陷无责的情形中构成要件模式的正确性,即原因自由行为实质上并不是一种需要特殊归责的构造,而只是一种现象上有独特之处,但完全可以被包括在一般的归责形态(无论是过失犯还是故意犯)之中的说明形式(说明实行行为到底在何处)而已。要成立过失犯形态的原因自由行为,关键在于如何在具体情况下认定行为人的过失心理,它可能有三种表现形式。     

Detection of drugs of abuse in simultaneously collected oral fluid, urine and blood from Norwegian drug drivers

Blood and urine samples are collected when the Norwegian police apprehend a person suspected of driving under the influence of drugs other than alcohol. Impairment is judged from the findings in blood. In our routine samples, urine is analysed if morphine is detected in blood to differentiate between ingestion of heroin, morphine or codeine and also in cases where the amount of blood is too low to perform both screening and quantification analysis. In several cases, the collection of urine might be time consuming and challenging. The aim of this study was to investigate if drugs detected in blood were found in oral fluid and if interpretation of opiate findings in oral fluid is as conclusive as in urine. Blood, urine and oral fluid samples were collected from 100 drivers suspected of drugged driving. Oral fluid and blood were screened using LC-MS/MS methods and urine by immunological methods. Positive findings in blood and urine were confirmed with chromatographic methods. The analytical method for oral fluid included 25 of the most commonly abused drugs in Norway and some metabolites. The analysis showed a good correlation between the findings in urine and oral fluid for amphetamines, cocaine/benzoylecgonine, methadone, opiates, zopiclone and benzodiazepines including the 7-amino-benzodiazepines. Cocaine and the heroin marker 6-monoacetylmorphine (6-MAM) were more frequently detected in oral fluid than in urine. Drug concentrations above the cut-off values were found in both samples of oral fluid and urine in 15 of 22 cases positive for morphine, in 18 of 20 cases positive for codeine and in 19 of 26 cases positive for 6-MAM. The use of cannabis was confirmed by detecting THC in oral fluid and THC-COOH in urine. In 34 of 46 cases the use of cannabis was confirmed both in oral fluid and urine. The use of cannabis was confirmed by a positive finding in only urine in 11 cases and in only oral fluid in one case. All the drug groups detected in blood were also found in oral fluid. Since all relevant drugs detected in blood were possible to find in oral fluid and the interpretation of the opiate findings in oral fluid was more conclusive than in urine, oral fluid might replace urine in driving under the influence cases. The fast and easy sampling is time saving and less intrusive for the drivers.     

An Exploration of the Historical Background of Criminal Record Checking in the United Kingdom: From the Eighteenth to the Twenty-First Century

Potentially preventable crimes resulting from failures in criminal record checking and recording emerged as problematic in the eighteenth century and have continued up until the present day. Ranging from child abuse to murders, reports suggest that if criminal records had been evident, in some cases unlawful acts may have been prohibited. The historical background to the emergence of criminal record collection and checking in the United Kingdom (UK) is analysed from the mid-eighteenth century. This time period is chosen because it marks a pivotal change in the treatment of criminals, crimes and the start of the policing system in the United Kingdom. As a result of growing societal concerns over public safety and changes in the legal system, the approach in which criminal records have been utilised in employment decision-making has evolved most rapidly in the late twentieth and early twenty-first centuries. The recording, storing and sharing of criminal record information has received most attention only in the past decade. Developments in recruitment-vetting procedures for the protection of vulnerable persons have only emerged in the last 50 years to manage such crimes in the United Kingdom. In 2002 the Criminal Records Bureau (CRB) was established in the United Kingdom to ensure safer recruitment decisions could be made in society. However, the question remains whether or not these practices have been and are effective.