侵权还是违约--由一则案例引起的思考

侵权责任与违约责任是两类基本的民事责任。我国《民法通则》专设“民事责任”一章 ,不仅就两类责任的共性问题作出了阐述 ,而且对两类责任分别作出了规定。然而由于民事责任的复杂性 ,民事违法行为性质的多重性 ,使这两类责任常常发生竞合。本文试图通过对一个典型案例的分析 ,揭示违约责任与侵权责任的概念及其构成要件 ,确定侵权责任与违约责任竞合的标准 ,以期对民事立法和司法实践有所贡献。     

香港民事诉讼中的诉讼费担保制度

诉讼费担保制度是普通法系国家的一项民事诉讼规则和制度,它能够解决一些因诉讼费而产生的不公平问题。在诉讼费担保制度的适用情形、担保金命令的申请程序、担保金命令的发出程序、担保金命令的法律效力、担保金的取回程序方面,香港都有比较完善的规定,但也存在一些需要解决的问题。香港诉讼费担保制度的成功之处对于阻止内地民事诉讼中的当事人滥诉行为,会有一定的借鉴意义。     

World population data for the HLA-DQA1, PM and D1S80 loci with least and most common profile frequencies for combinations of loci estimated following NRC II guidelines

All published and unpublished gene frequency data for the PCR-based loci HLA-DQA1, LDLR, GYPA, HBGG, D7S8, GC, and D1S80 that could be located are presented in summary tables. These gene frequencies provide the data necessary for estimating probabilities of chance match according to NRC II guidelines for any DNA profile that includes any combination of these loci for any of the populations. To illustrate the range of polymorphism for combined locus profiles, least and most common profile frequencies were estimated following NRC II guidelines for: the PM loci for all populations for which PM data were available; and for combinations of HLA-DQA1/PM, HLA-DQA1/D1S80, PM/D1S80, and HLA-DQA1/ PM/D1S80 for populations for which data were available for the relevant combinations. The profile frequencies were calculated at theta values of zero and 0.01. Minimum allele frequencies (MAF) were calculated, and are shown, for each data set for which the MAF was greater than the lowest observed allele frequency. Least common profile frequencies were calculated using MAF in those cases to illustrate a conservative estimate. The effect of using MAF versus lowest observed allele frequency in estimating least common profile frequencies is briefly illustrated as well. We finally show that aggregate U.S. gene frequency data for the classical MN and GC polymorphisms for both Caucasian and African-American populations is fully in accord with the DNA-based gene frequency data obtained from PM reverse dot-blot strips for GYPA and GC, respectively.     

Reliability and validity of eight dental age estimation methods for adults

This paper evaluates the reliability and validity of eight published dental age estimation methods for adults that may aid in victim identification. Age was calculated on 20 Caucasian teeth of known age according to the methods of Kvaal (for in situ and extracted teeth), Solheim (for in situ and sectioned teeth), Lamendin (for extracted teeth), Johanson (for sectioned teeth) and Bang (for extracted and sectioned teeth) by one independent observer. For each method, mean age error and standard error were assessed as the measures of accuracy and precision. In addition, method simplicity, requirements for tooth preparation and the equipment necessary were assessed and recommendations given for forensic use in various situations. Methods for sectioned teeth gave more reliable results when compared to methods for intact teeth.     

补偿博弈与第三方评估

从对公共利益、公众参与、公平补偿的强调来看,《国有土地上房屋征收与补偿条例》相比《城市房屋拆迁管理条例》进步显著。然而,引入经济学中博弈论概念工具对该征收条例的解读表明,公平补偿能否实现在很大程度上取决于评估机构。该征收条例中一些模糊的规定,以及《国有土地上房屋征收评估办法》赋予评估机构以垄断地位的制度设计,为政府和评估机构的机会主义行为留下了极大的空间。由此,构建有效的第三方评估市场,并在政府报价之后赋予被征收人以真正的自由选择评估机构的权利,是构建法治社会中和谐的征收关系的关键。     

Medicaid program; correction and reduction plans for intermediate care facilities for the mentally retarded--HCFA. Final rule

This final rule amends the portions of the Medicaid regulations under which an intermediate care facility for the mentally retarded (ICF/MR) with substantial deficiencies that did not pose an immediate jeopardy to the health and safety of clients could continue participation in the Medicaid program. These regulations gave State Medicaid agencies the option of submitting written plans to either correct deficiencies or permanently reduce the number of beds in the certified portion of the facility. This rule removes all requirements for submitting, approving, and monitoring correction plans for ICFs/MR. The requirements for submitting and approving correction plans are being removed because the time limit for submission of these plans has passed. The provisions for monitoring correction plans are being removed because there are no remaining facilities for which these provisions apply. This final rule also removes requirements for submitting and approving reduction plans for ICFs/MR because the time limit for submitting these plans has passed. It retains and updates the requirements for monitoring and compliance that apply to those ICFs/MR for which reduction plans were approved by January 1, 1990.     

Sex differences in the likelihood of arrest

Using data from the new National Incident-Based Reporting System (NIBRS), this study analyzed the impact of a criminal offender's sex on the likelihood of arrest for 555,752 incidents of kidnapping, forcible rape, forcible fondling, robbery, aggravated assault, simple assault, and intimidation in nineteen states and the District of Columbia during 2000. The data used in this study advanced the literature by enabling the authors to determine the likelihood of arrest for males and females based on sex-specific offending as reported by crime victims. Controlling for offense seriousness and a variety of other factors, logistic regression results showed that the probability of arrest for females was 28 percent lower for kidnapping, 48 percent lower for forcible fondling, 9 percent lower for simple assault, and 27 percent lower for intimidation than for males. A supplemental analysis also revealed that Black females had a higher probability of arrest than did White females for aggravated and simple assault. No discernable impact of an offender's sex on the prospect of arrest was noted for the crimes of forcible rape and robbery. Overall, these findings suggest that the lower arrest rate for females is partly the result of leniency shown women by law enforcement personnel.     

Medicare program; physician fee schedule update for calendar year 1997 and physician volume performance standard rates of increase for Federal fiscal year 1997--HCFA. Final notice

This final notice announces the calendar year 1997 updates to the Medicare physician fee schedule and the Federal fiscal year 1997 volume performance standard rates of increase for expenditures for physicians' services under the Medicare Supplementary Medical Insurance (Part B) program as required by sections 1848 (d) and, (f), respectively, of the Social Security Act. The fee schedule updates for calendar year 1997 are 1.9 percent for surgical services, 2.5 percent for primary care services, and -0.8 percent for other nonsurgical services. While it does not affect payment for any particular service, there was a 0.6 percent increase in the update for all physicians' services for 1997. The physician volume performance standard rates of increase for Federal fiscal year 1997 are -3.7 percent for surgical services, 4.5 percent for primary care services, -0.5 percent for other nonsurgical services, and a weighted average of -0.3 percent for all physicians' services.     

Medicare program; physician fee schedule update for calendar year 1996 and physician volume performance standard rates of increase for federal fiscal year 1996--HCFA. Final notice

This final notice announces the calendar year 1996 updates to the Medicare physician fee schedule and the Federal fiscal year 1996 volume performance standard rates of increase for expenditures for physicians' services under the Medicare Supplementary Medical Insurance (Part B) program as required by sections 1848 (d) and (f), respectively, of the Social Security Act. The fee schedule update for calendar year 1996 is 3.8 percent for surgical services, -2.3 percent for primary care services, and 0.4 percent for other nonsurgical services. While it does not affect payment for any particular service, there was a 0.8 percent increase in the update for all physicians' services for 1996. The physician volume performance standard rates of increase for Federal fiscal year 1996 are -0.5 percent for surgical services, 9.3 percent for primary care services, 0.6 percent for other nonsurgical services, and a weighted average of 1.8 percent for all physicians' services. In our July 26, 1995 proposed rule concerning revisions to payment policies under the Medicare physician fee schedule for calendar year 1996, we proposed using category-specific volume and intensity growth allowances in calculating the default Medicare Volume Performance Standard (MVPS). We received 20 comments on this proposal. Since this proposal is related to the MVPS and this notice deals with MVPS issues, we are responding to those comments in this notice instead of in the final rule for the fee schedule entitled "Medicare Program; Revisions to Payment Policies and Adjustments to the Relative Value Units Under the Physician Fee Schedule for Calendar Year 1996" published elsewhere in this Federal Register issue.     

Elevated Risk of Arrest for Veteran's Administration Behavioral Health Service Recipients in Four Florida Counties

This paper examines the relative contribution of mental and substance abuse disorders to criminal justice involvement by examining the relative risk of arrest for three groups of adult male recipients of VA behavioral health care services. These groups include men served for both substance abuse and mental health, for only substance abuse, and for only mental health. The relative risk of multiple offences is compared to relative risk of a single offense for each group. Results indicated that relative risk of multiple arrests for the dual diagnosis group is substantially greater than for either of the single diagnosis groups, and greater than the relative risk for recipients of nonbehavioral health services. Relative risk of arrest for recipients of only mental health services is no different than the relative risk for other veterans living in the region under examination.     

A simplified procedure for simultaneous detection of salivary proteins and its application in paternity testing

An alternative simplified procedure for the genetic analysis of salivary protein complex (SPC) which eliminates the need for a specific concentrated parotid sample is proposed. After the technique is applied isoelectric focusing and protein detection is carried out by silver staining. The chance of exclusion of non-fathers for these systems in our population is 0.161711 for Pr, 0.07948 for Db, 0.07836 for Pa and 0.00995 for PIF. The total exclusion rate for these systems is 0.30042.     

Optimized conditions for simultaneous determination of opiates, cocaine and benzoylecgonine in hair samples by GC--MS

The present paper describes a qualitative and quantitative method for the simultaneous detection of opiates, cocaine and benzoylecgonine from human hair samples. Every step of the analytical procedure was studied to find the optimized conditions. Nine different incubation systems were examined. The influence of different pH values of samples on the isolation of analytes from the incubation media by Bond Elut cartridges and the stability of the compounds of interest in the different incubation media and conditions were investigated. The extracting power of different incubation media was studied as well. The phosphate buffer 0.1 N at pH 5 was chosen as the extraction medium in an optimized procedure for simultaneous determination of opiates, cocaine and benzoylecgonine in hair samples. The method developed was validated. Recoveries were 90% for morphine (M), 81% for 6-monoacetylmorphine (6-AM), 90% for codeine (CD), 86% for cocaine (C) and 90% for benzoylecgonine (BE). Relative standard deviation for inter-day precision was better than 12%. The limits of detection resulted as 0.05 ng/mg for M and C, as 0.08 for 6-AM and as 0.2 ng/mg for BE. Forty hair samples collected from drug abusers admitted to centers for detoxification treatment were analyzed obtaining 23 positive results for opiates and/or cocaine. Twelve hair specimens longer than 10 cm were analyzed following a sectional approach. In the six positive cases, it was interesting to find that the 6-AM/M ratio generally decreased for each sample from the proximal segment to the distal segments. Moreover, the 6-AM/M ratio was generally lower than 1 in the intermediate and distal segments.     

环境损害赔偿立法框架和内容的思考

环境损害赔偿立法的必要性由现实社会关系调整的必要性和现行相关立法的不适应性所决定。我国环境损害赔偿立法宜采取实体和程序一体、行政处理与司法处理一体的立法模式,并着重规定环境纠纷处理和环境损害赔偿方面所涉及的一些特殊问题。立法框架和内容主要包括环境损害赔偿的适用条件、环境损害赔偿的范围、环境损害赔偿责任的认定、环境损害赔偿纠纷的行政处理、环境损害赔偿的司法处理等部分。环境损害赔偿立法的难点在于环境行政主管机关处理决定的法律效力问题以及因果关系推定的准确表述问题。     

部分权利能力制度的构建

局限于19世纪的哲学认识,权利能力仅被赋予自然人和法人,其他人和组织形态的权利能力被忽略。因而,当迫切需要法律对这些人和组织予以调整时,传统权利能力的规定成为不可逾越的体系障碍,必须通过法律续造的方法构建部分权利能力制度。事实上,民法关于权利能力制度的构造以及立法上的一些规定已经为部分权利能力的构建提供了坚实的理论基础和立法例支撑。部分权利能力是在部分而非全部的民事法律关系中作为民事权利享有者和义务承担者的能力,它通过考察自然人和法人以外的人和组织的人格状态和特定法律关系的价值和目的来认定。部分权利能力是一个开放的概念,它不但包括胎儿、死者与合伙的部分权利能力,还包括其他一些人和组织的部分权利能力。     

Validated method for the simultaneous determination of Delta9-THC and Delta9-THC-COOH in oral fluid, urine and whole blood using solid-phase extraction and liquid chromatography-mass spectrometry with electrospray ionization

A fully validated, sensitive and specific method for the extraction and quantification of Delta(9)-tetrahydrocannabinol (THC) and 11-nor-9-carboxy-Delta(9)-THC (THC-COOH) and for the detection of 11-hydroxy-Delta(9)-THC (11-OH THC) in oral fluid, urine and whole blood is presented. Solid-phase extraction and liquid chromatography-mass spectrometry (LC-MS) technique were used, with electrospray ionization. Three ions were monitored for THC and THC-COOH and two for 11-OH THC. The compounds were quantified by selected ion recording of m/z 315.31, 329.18 and 343.16 for THC, 11-OH THC and THC-COOH, respectively, and m/z 318.27 and 346.26 for the deuterated internal standards, THC-d(3) and THC-COOH-d(3), respectively. The method proved to be precise for THC and THC-COOH both in terms of intra-day and inter-day analysis, with intra-day coefficients of variation (CV) less than 6.3, 6.6 and 6.5% for THC in saliva, urine and blood, respectively, and 6.8 and 7.7% for THC-COOH in urine and blood, respectively. Day-to-day CVs were less than 3.5, 4.9 and 11.3% for THC in saliva, urine and blood, respectively, and 6.2 and 6.4% for THC-COOH in urine and blood, respectively. Limits of detection (LOD) were 2 ng/mL for THC in oral fluid and 0.5 ng/mL for THC and THC-COOH and 20 ng/mL for 11-OH THC, in urine and blood. Calibration curves showed a linear relationship for THC and THC-COOH in all samples (r(2)>0.999) within the range investigated. The procedure presented here has high specificity, selectivity and sensitivity. It can be regarded as an alternative method to GC-MS for the confirmation of positive immunoassay test results, and can be used as a suitable analytical tool for the quantification of THC and THC-COOH in oral fluid, urine and/or blood samples.     

TRICARE formerly known as the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS); fiscal year 1998 mental health rate updates--DoD. Notice of updated mental health per diem rates

This notice provides for the updating of hospital-specific per diem rates for high volume providers and regional per diem rates for low volume providers; the updated cap per diem for high volume providers; the beneficiary per diem cost-share amount for low volume providers for FY 1998 under the TRICARE Mental Health Per Diem Payment System; and the updated per diem rates for both full-day and half-day TRICARE Partial Hospitalization Programs for fiscal year 1998.     

登记的担保权顺位规则研究——以《民法典》第414条分析为中心

登记的担保权顺位规则旨在解决以登记作为公示方式的担保权竞存时的顺位问题,《民法典》第414条构建了以登记为中心的抵押权竞存下的顺位规则,该条具有强大的体系效应和广泛的适用价值,它构建了统一的动产重复抵押的顺位规则,解决了权利重复抵押的顺位规则、抵押权与可以登记的权利质权冲突规则,明确了典型担保与非典型担保之间的顺位关系,并可参照适用于权利质权竞存情形下权利顺位的确定,为多重的担保性债权转让的顺位规则提供了基础。《民法典》第414条确立了顺位升进主义。但《民法典》第414条在适用中应当排除正常经营买受人优先保护规则、价金超级优先权规则等规则的适用。     

论合同法第一百二十二条在产品责任中的运用

产品质量责任经常会发生违约责任与侵权责任竞合,合同法第一百二十二条确立了“请求权竞合选择说”。在产品质量责任中,我们要严格界定违约责任与侵权责任的界限和它们发生的竞合,以便正确行使请求自由选择权。     

Medicare program; photocopying reimbursement methodology. Final rule

This final rule increases the rate of reimbursement for expenses incurred by prospective payment system PPS) hospitals for photocopying medical records requested by Quality Improvement Organizations (QIOs), formerly known as Utilization and Quality Control Peer Review Organizations (PROs). We are increasing the rate from 7 cents per page to 12 cents per page to reflect inflationary changes in the labor and supply cost components of the formula. This final rule also provides for the periodic review and adjustment of the per-page reimbursement rate to account for inflation and changes in technology. The methodology for calculating the per-page reimbursement rate will remain unchanged. We are also providing for the payment of the expenses of furnishing photocopies to QIOs, to other providers subject to a PPS (for example, skilled nursing facilities and home health agencies), in accordance with the rules established for reimbursing PPS hospitals for these expenses.     

服务侵权责任是独立的质量侵权责任

服务侵权责任是一项独立的质量侵权责任。承担服务侵权责任的前提条件是服务存在缺陷,即服务经营者所提供的服务不符合保障人身、财产安全的要求,包括服务设计缺陷、服务指示缺陷和服务过程缺陷。服务侵权责任的归责原则应采取过借推定兼顾公平原则。服务侵权责任与产品责任、建筑侵权责任构成我国“三位一体”的质量侵权责任制度。