侵害人视角下的正当防卫论

为扭转我国正当防卫审判实践中长期存在的唯结果论倾向,有必要从侵害人的视角出发,对正当防卫的教义学研究重新加以审视。正当防卫的本质除了法益保护,还在于侵害人因违反不得侵害他人法益的义务,主动使自己陷入法益冲突的险境,从而使自身法益的值得保护性下降。侵害人法益值得保护性的下降程度影响着防卫权边界的划定,从而与防卫限度的判断密切相关。如果站在实施防卫行为时,综合考量侵害行为给有效防卫造成的困难、侵害人给防卫人的安全带来的危险程度,能够认定防卫行为是为有效、安全地制止不法侵害所需的最低限度反击手段,则侵害人法益的值得保护性归于消灭,除非被损害的法益与被保护的法益在价值上存在极端悬殊的差别。     

The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent–Patient Divide

In an earlier article, I introduced the “restricting claims principle” (RCP) to explain what is right about the means principle: the idea that it is harder to justify causing or allowing someone to suffer harm if using him as a means than if causing or allowing harm as a side effect. The RCP appeals to the idea that claims not to be harmed as a side effect push to restrict an agent from doing what she would otherwise be free to do for herself or others, given an appropriate account of her baseline freedom. Claims not to be harmed as a means are not in that way ‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’s baseline freedom: What could the agent permissibly do if the patient were not present? I argue here that that counterfactual baseline fails. The revised RCP relies instead on a ‘‘toolkit baseline’’: Do the patient claims concern the property the agent needs to use? This toolkit baseline reflects the different ways that agents relate to others: as fellow agents with whom they divide up the resources of the world, and as patients who might be affected by their actions. The toolkit baseline, resting on this agent-patient divide, provides a superior account of an agent’s baseline freedom, and a better account of the moral ground for the means principle     

Ensuring Insurance for Foster Care: Requiring Foster Parents to Obtain Liability Insurance to Cover Harm Done to Foster Children in their Care

This Note proposes that all states should require that foster parents have liability insurance before children are placed in their care. This Note also proposes that the liability insurance needs to cover not just harm to third parties but also harm to the foster children through the negligent acts of the foster parents. This legislation will allow foster children to have standing to bring claims against their foster parents and insurance companies and give them a greater opportunity for recovery. Currently, the policies and statutes governing the policies in place do not cover all types of harm that can occur during the foster parent–child relationship. Certain policies leave children who are harmed by their foster parents’ negligence unable to recover any damages from the people who have harmed them. Because foster parents can be left to defend the actions themselves, they often become judgment proof due to their low income, leaving the children who are harmed with little chance of recovery.

Key Points for the Family Court Community:
• States need to require foster parents to obtain liability insurance, which covers harm done by the foster children to third parties, harm to the home, and any harm done to the child by the foster parents.

     

刑罚根据完整化上的犯罪分类——侵害犯、危险犯、结果犯、行为犯的关系论纲

把结果犯、行为犯、危险犯作为犯罪既遂类型,是一种理论上的因果倒置。这些概念并不是在明确了犯罪既遂标准后根据既遂标准的不同所作的犯罪分类。相反,侵害犯与危险犯、结果犯与行为犯的划分,对犯罪既遂标准的确定具有理论指导意义。危险犯与侵害犯、结果犯与行为犯的划分需要以法益理论为前提,以完整化的刑罚根据为视角。侵害犯与危险犯是以犯罪完整化的刑罚根据在性质上的不同(是对法益的侵害还是对法益的危险)为划分标准的。结果犯与行为犯是以刑罚根据完整化是否包含结果要素为划分标准的。由于两组概念的划分标准不同,因而并非对应或者并列关系,也非包含关系,而是一种交叉关系。交叉的结果,便形成了四种犯罪类型:实害结果犯、危险结果犯、侵害行为犯、危险行为犯。这些犯罪类型的划分是理解犯罪既遂的基础,但并非从属于犯罪既遂理论。     

Misidentified political figures: an underappreciated danger

A series of twelve patients is presented in which each patient suffered from one or more misidentification syndromes and also misidentified one or more political figures. The fact that misidentification syndromes have been associated with physical violence and that the majority of the patients studied had a history of physical violence suggests that these individuals could pose a significant danger of physical harm to others, including political figures. Persons who threaten political figures should be evaluated for misidentification syndromes.     

资产证券化中的超额担保制度研究

在西方资产证券化进程中,尤其是在"后金融危机时代",超额担保制度有助于降低投资风险,提高投资者信心,消弭金融危机的不利影响。为吸取美国金融危机的前车之鉴,我国在资产证券化起步阶段应引入该制度。超额担保的本质是债权质押,其质押标的是将来债权。在我国现行法律体系下,超额担保受制于现行的质押制度和破产法律制度设计。我国应制定专门的《资产证券化法》,明确资产证券化的性质,并对证券化资产的可让与性和出质问题予以专门规定,从而使超额担保制度既符合物权法定原则,又满足现实需要。通过控制超额比率和设置利差账户,以解决超额担保与现行破产法律之间的冲突问题。     

The use of harmful to others-criterion for involuntary treatment in Finland

During the past decades the Western countries have paid attention to their Mental Health legislation, in particular, by making changes concerning involuntary treatment. In Western countries legislation allows involuntary treatment of the mentally ill. Involuntary psychiatric treatment is motivated by either potential harm to others (for the good of society) or by need for treatment and/or potential self-harm (for the good of the patient). The aims of this study were to describe to what extent the danger to others criterion is used as a motivation for involuntary hospitalization and detainment in Finland, and to what kind of patients this criterion is applied. The study involves a retrospective chart review of all the treatment periods of a six month admission sample in three Finnish university hospitals. We found that potential harm to others has been rarely used as a motivation for involuntary referral or detainment together with other motivations, and virtually never as the sole motivation. With the exception of gender, which was most often male, patients with potential harm to others did not differ significantly from other involuntarily treated patients. Coercion (defined as seclusion, the use of restraints, forced medication, physical restraint or restrictions in leaving the ward) was not used with these patients more regularly than with the patients motivated by the other criteria. Length of stay (LOS) in a psychiatric hospital did not differ between the patients determined harmful to others and the other involuntarily treated patients.     

Brexit and Parliamentary Sovereignty

This note addresses the implications of R (Miller) v Secretary of State for Exiting the European Union for the legal principle of parliamentary sovereignty, and argues that the strong restatement of the latter is the most significant feature of the decision. The aim here is to show how traditional principle in the Dicey tradition has been strongly applied against the competing claims of EU law, the royal prerogative, the referendum and devolution. However, the note also argues that the claims relating to parliamentary sovereignty could have produced a different result and that the most compelling feature of the case was the argument that was not forcefully put by the Government, namely that Parliament had already provided sufficient authority for the triggering of Article 50.     

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

Despite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.     

非损害赔偿侵权责任方式的法理与实践

我国采取物权请求权与侵权请求权竞合的模式,侵权责任法亦承载预防损害的功能。依功能定位的不同,八种侵权责任方式可划分为损害预防与损害赔偿两大类,停止侵害、排除妨碍、消除危险同属非损害赔偿责任方式。在现代社会中,妨害与损害概念的趋同性造成了许多学术误解,区分二者实有必要,非损害赔偿责任方式针对妨害源而非损害结果应成为理论共识。非损害赔偿责任方式虽不适用侵权归责原则,但亦非绝对无条件,而应遵循以违法性为责任成立要件、适度性为责任范围要件的规则,同时予以适当限缩,以体现利益衡量的法学思想。     

Could There be a Right to Own Intellectual Property?

Intellectual property typically involves claims of ownership of types, rather than particulars. In this article I argue that this difference in ontology makes an important moral difference. In particular I argue that there cannot be an intrinsic moral right to own intellectual property. I begin by establishing a necessary condition for the justification of intrinsic moral rights claims, which I call the Rights Justification Principle. Briefly, this holds that if we want to claim that there is an intrinsic moral right to φ, we must be able to show that (a) violating this right would typically result in either a wrongful harm or other significant wrong to the holder of the right, and (b) the wrongful harm or other wrong in question is independent of the existence of the intrinsic right we are trying to justify. I then argue that merely creating a new instance of a type is not the kind of action which can wrongfully harm the creator of that type. Insofar as there do seem to be wrongs involved in copying a published poem or computer program, these wrongs presuppose the existence of an intrinsic right to own intellectual property, and so cannot be used to justify it. I conclude that there cannot be an intrinsic right to own intellectual property.     

The brave new world of Medicare and Medicaid fraud and abuse enforcement: whistle-blowers, pre-filing agreements, and voluntary disclosure

Providers participating in the recent wave of mergers, acquisitions, and affiliations may have unwittingly expanded their false claims exposure because many false claim-type situations are difficult, if not impossible, to identify in pre-closing due diligence. In addition, the possibility of retrospective characterization of ordinary billing mistakes as "false claims" increasingly introduces significant uncertainty to the average provider's financial future. To date, the single most effective approach to this problem is an independent compliance review to identify and resolve any existing exposure, including voluntary disclosure if appropriate, and an ongoing compliance program to communicate to all employees not only the content of applicable rules but also the genuine commitment of management to ensure continuing compliance above other concerns.     

In the Name of Equal Rights: "Special" Rights and the Politics of Resentment in Post–Civil Rights America

This article explores the character of conservative legal activism in post–civil rights America, arguing that this activism is motivated by two related factors: (1) resentment over the increased political participation of historically marginalized Americans and (2) principled allegations that these historically marginalized Americans are making illegitimate claims for "special," not equal, rights. I argue that the allegation of special rights is tied to the activists' resentment in multiple and complex ways. On the one hand, the allegation that the rights claims of the historically marginalized are illegitimate claims for special rights is itself an expression of resentment. Like arguments that oppose redistributive social change by relying upon discourses of color blindness, states' rights, evangelical Christianity, and community harmony, special rights talk channels resentment into recognizable and intelligible forms. But, on the other hand, the use of special rights talk is not simply cover for an underlying, fully formed resentment. Instead, the allegation of special rights propels and amplifies activists' resentment, transforming it from one that is based primarily upon competing self-interests into one that is concerned with values, morality, and national identity. Special rights talk thus partially constitutes resentment; it hardens the resolve of opponents of redistributive social change, encouraging them to understand themselves as defenders not only of their own self-interests but also, primarily even, as defenders of the core American values and ideals that are promoted by equal rights and assaulted by special rights. Thus convinced that their opposition is authorized by American tradition, conservative legal activists redouble their counter-mobilization efforts, leading to an exacerbation of already tense conflicts. A case study of the nationwide anti-treaty-rights movement grounds this analysis.     

Predictors of adult attitudes toward corporal punishment of children

This study identifies predictors of favorable attitudes toward spanking. Analyses were performed with survey data collected from a representative sample of 1,000 adults from Quebec, Canada. According to this survey, a majority of respondents endorsed spanking, despite their recognition of potential harm associated with corporal punishment (CP) of children. The prediction model of attitudes toward spanking included demographics, experiencing or witnessing various forms of family violence and abuse in childhood, and perceived frequency of physical injuries resulting from CP. Spanking was the most reported childhood experience (66.4%), and most violence and abuse predictors were significantly and positively correlated. Older respondents who were spanked in childhood and who believed that spanking never or seldom results in physical injuries were the most in favor of spanking. On the other hand, respondents who reported more severe physical violence or psychological abuse in childhood were less in favor of spanking. Findings are discussed in terms of prevention of CP and family coercion cycle.     

The limits of the physician's secrecy duty in risk situations. Special reference to genetics]

This work deals with those conflict situations that arise between the duty of secrecy by health professionals and the interest in safekeeping the life and physical integrity of third parties when dealing with behaviours by the patient, whether intentional or not, that could harm or place in danger those legal goods. The special situations of conflict that could arise in the ambit of genetic diagnosis are dealt as a special problem.     

The Complexities of Land Reparations

The question whether unjust dispossessions of land perpetrated on whole peoples in the past should be corrected by restitution in kind, that is, granting reparations in the form of returning land to the dispossessed former owners or their present‐day successors, is substantially more complex than the questions posed by other forms of reparations. I argue that the complexities involved in all the situations where claims for land reparations are made to correct historic injustices give us good reasons to be hesitant about granting such claims. At the same time, we should not dismiss such claims out of hand. Reparations that take a form other than restitution of dispossessed land may be both necessary and sufficient to establish a public marker of acknowledgment.     

Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error

The purpose of this paper is to investigate the feasibility of claims for psychiatric damage following the death of a family member, where that death has been caused by medical error. ¹ The relative's position is a subject of heightened interest since the exposure of the plight of the parents involved in the UK organ scandal, ² and in the case of an iatrogenic death it is, of course, the family who are essentially the focus of the law's attempts to provide redress. Whilst the cases of deceased patients' relatives seeking damages for mental harm are inherently problematic in light of the restrictive secondary victim criteria applicable to psychiatric damage claims, a close look at the rules which permeate this area of compensation reveals that denying compensation to the relative suffering psychiatric harm is difficult to sustain. ³     

Examination of live victims of violent crimes at the Institutes of Legal Medicine of Hanover, Cologne and Leipzig

During the last few years the importance of clinical forensic medicine has increased within the field itself, but also in interdisciplinary cooperation. Although examinations of live victims play a substantial role in the every-day work of most German forensic scientists, the number of data published on their frequency and the type of offence for which they were performed is small. For this reason a comparison of the data from the Institutes of Legal Medicine in Hanover, Cologne and Leipzig was carried out. Most of the examinations performed by all the three institutes were ordered by courts, the prosecution or the police. Only in a few cases did private persons or hospitals ask for a forensic expert opinion on injuries. During the study period the total number of examined violence victims per annum increased noticeably from 252 in 1999 to 507 in 2003. The total number of examinations during the five-year study period amounted to 1181 in Hanover, 393 in Leipzig and 198 in Cologne, which all have a similar number of inhabitants in the respective catchment area of the institutes. Most of the examinations were carried out in victims of bodily harm, sexual assault and child abuse, but also in traffic offences, for age determination, in self-inflicted injuries and in suspects of homicide. On the one hand the remarkable rise of the number of physical examinations shows that the importance of forensic expert opinions is increasingly recognized. On the other hand the considerable regional differences demonstrate that the competence offered by the Institutes of Legal Medicine in the documentation and interpretation of violence is by far not yet sufficiently used.     

也论人身危险性在我国刑法中的功能定位——兼与游伟研究员和陆建红审判员商榷

人身危险性的最初含义是犯罪可能性,包括初犯可能性和再犯可能性。人身危险性的性质是双面的,既可能是社会危害性的内容,也可能是刑事责任的内容。当立法者将人身危险性作为某些犯罪的构成要件时,其能决定社会危害性的有无,是定罪的根据,具有出入罪的功能;当立法者未将人身危险性作为犯罪的构成要件时,其仅影响刑事责任的大小,是量刑的根据,具有影响刑罚轻重的功能。无论在定罪活动中,还是在量刑活动中,人身危险性的功能均是双向的,而非单向的。     

Conceiving harm: disability discrimination in assisted reproductive technologies

Applying the Americans with Disabilities Act (ADA) to denials of treatment by assisted reproductive technology (ART) practitioners raises particularly challenging legal and ethical issues. On the one hand, the danger that physicians will inappropriately deny treatment to patients with disabilities is especially worrisome in the context of ARTs, given the widespread stigma associated with reproduction by individuals with disabilities. On the other hand, patients' disabilities may sometimes have potentially devastating implications for any child resulting from treatment, including the possibility that the child will be born with life-threatening or seriously debilitating impairments. Some physicians have strong ethical objections to helping patients become pregnant in the face of such risks. In this Article, Professor Coleman develops a framework for applying the ADA to disability-based denials of ARTs that addresses these competing considerations. In recognizing risks to the future child as a potential defense to a disability discrimination claim, Professor Coleman rejects the view of some commentators that such risks are relevant to reproductive decisions only if the child is likely to suffer so much that he or she would prefer not to exist. Instead, he proposes that, when a patient's disabilities create significant risks to the future child, the question should not be whether the child's life is likely to be so awful that nonexistence would be preferable, but how the risks and benefits of the requested treatment compare to those associated with other available reproductive and parenting options. Professor Coleman provides a theoretical justification for adopting this comparative framework, and examines how ADA precedents developed in other contexts should be applied to decisions about ARTs.