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。     

Elections and the Soviets

Elections for the local Soviets now functioning were held in March 1961. The number of Soviets elected in the USSR as a whole was 49,858, of which 7 were for territories, 107 for regions, 9 for autonomous regions, 10 for national areas, 3,401 for districts, 1,678 for towns, 343 for districts in cities, 3,061 for settlements, and 41,242 for villages.     

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。     

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.     

An Empirical Review of Family Group Conferencing in Juvenile Offenses

This study reports the results of an effect size analysis of the effectiveness of family group conferencing (FGC) on recidivism and satisfaction in juvenile offenses. Analyses were conducted on nine studies consisting of 2,880 juveniles. The average recidivism effect size for all studies showed no FGC treatment effect on recidivism. A total satisfaction effect size was calculated by the mean score of all satisfaction variables for victims, offenders, and supporters. The average total satisfaction effect size was moderate. The average effect size for satisfaction of victim, offender, and supporters was calculated for all satisfaction variables. The average total satisfaction effect size for victims was strong, moderate for offenders, and mild for parents and supporters. Between groups, comparisons were conducted to examine differences in overall satisfaction by participant group. While there were higher effect sizes for victims compared to supporters and offenders, there were no statistically significant differences between groups. Results find no support for the effectiveness of FGC in reducing recidivism. Results do show higher effect sizes for FGC in comparison to control groups in satisfaction with the criminal justice process. Recommendations for methodological improvements in future FGC research are discussed.     

Intra- and inter-speaker variations of formant pattern for lateral syllables in Standard Chinese

Speech variation of speakers is a crucial issue for speaker recognition and identification, especially for forensic practice. Greater intra-speaker variation is one main reason for incorrect speaker identification in real forensic situations. Understanding the stability of acoustic parameters and their variation in speech is therefore significant for the evaluation of effective parameters for speaker identification. In this paper, all vowels in Standard Chinese including five monophthongs, eight diphthongs and four triphthongs were combined with lateral /l/. Finally, 15 lateral syllables with different tones for 10 speakers were selected and acoustically analyzed. Central frequencies of the first four formants for each syllable were measured for quantitative comparison of intra- and inter-speaker variation in order to provide a general idea of speaker variation in Standard Chinese, and finally serving for forensic application. Results show that the overall intra-speaker variation is less than the inter-speaker variation in great extent under laboratory condition though occasionally they are contrary. This supports the basis for forensic speaker identification, that is, intra-speaker variation should be less than inter-speaker variation in many acoustic features, and further validates the probability and reliability of forensic speaker identification.     

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。     

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。     

构建民事再审立案审查程序的思考

民事再审立案审查程序包括申诉复查案件的立案受理 (即立卷 )、审查、通知驳回或裁定再审三个主要环节 ,它与再审程序共同构成了我国完整意义上的民事审判监督程序。近年来 ,随着民事审判监督制度和审判方式改革的深入以及再审案件立审分立制度的推行 ,民事再审立案审查程序三个主要环节上存在的问题逐渐暴露出来。为此 ,应当反思和完善民事再审立案审查程序的基本原则 ,并从申诉复查案件立案受理条件、审查组织形式、审查方式、审查期限、再审立案标准、再审立案审批程序、诉讼文书样式等方面来考虑民事再审立案审查程序的构建。     

论船舶油污民事责任主体的扩张性

一直以来,中国学界和司法实践中普遍接受和遵循《1992年国际油污损害民事责任公约》船舶所有人责任专属制度,将船舶油污民事责任主体限定为船舶所有人。然而,船舶油污民事责任主体是否具有扩张性,即是否可以及于船舶所有人以外的当事方却鲜有讨论。针对船舶油污民事责任主体的扩张性,通过对国外立法、司法实践中相关案例及理论基础进行详细分析,并结合中国目前船舶油污事故发生的实际情况及相关法律规定,可以认为扩张船舶油污民事责任主体在中国具有必要性和可行性。     

Pubic bone age estimation in adult women

In recent years, numerous physical anthropologists have pointed out the need for regional standards for estimating age in various world populations. While investigating aging methods for East European populations, dramatic changes were noted in the pubic symphyseal morphology and structure of older adult female individuals. These changes were not captured in the typically used pubic symphysis aging methods. This paper defines and tests the need for a new phase, phase VII, that follows the Suchey-Brooks phase VI. In addition, Suchey-Brooks phases V and VI are redefined. Phase definitions, decision-making rules, and comparison graphics for the new method are presented. Balkan (n = 85) and Eastern Tennessee (n = 104) samples, totaling 189 individuals, were used in the analysis. Pearson correlation coefficients between four observers and a control seriation were strong, indicating ease of replicability between investigators. No statistically significant intra-observer error was detected. Summary statistics show that individuals in phase V were on average in the early 50s, while individuals in phase VI were in their mid 50s to mid 60s, and individuals in phase VII were in their mid 70s. Since linear regression models tend to under-age the elderly and over-age the young, transition analysis, using an unrestricted cumulative probit model, was undertaken to evaluate the phases and to produce point estimates for the ages-at-transition for the Balkan sample. The highest posterior density region point estimates with their associated upper and lower bounds can be used for predicting age for unknown forensic cases related to the Balkan sample. Further, the mean ages and standard deviations for phases V-VII for the Tennessee sample are presented for use in American forensic cases.     

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.     

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。     

宪政语境下的公民主体性法理分析——兼析中国宪政语境下的“国家—市民社会”范式的历史逻辑缺陷

学界对宪政主义与市民社会的引入与研究普遍地存在割裂了西方语境下的宪政主义与市民社会的历史逻辑链条的问题,它忽视了公民主体性这个宪政发展与市民社会构成的基础性与结构性的要件。现代宪政意味着权力自身的矛盾运动,它需要对权力的矛盾运动予以限制和控制以使得其在理性的轨道中运行。权力精英之间的权力博弈在现代宪政中是必不可少的,但是这种权力博弈如果没有具有主体性的公民组成的成熟市民社会的参与,那么它就可能导致宪政体系的崩溃。     

The influences of incident and contextual characteristics on crime clearance of nonlethal violence: A multilevel event history analysis

Using multilevel event history analyses, this article investigates the effects of both incident and contextual (social disorganization and police resources) factors on crime clearance by arrest for robbery, forcible rape, and aggravated assault incidents in 106 cities. The analysis found that victim's age, the number of concomitant offenses and victims, victim's injury, and weapon use played important roles in crime clearance for all three types of nonlethal violent incidents. Among social disorganization variables, higher unemployment and racial segregation significantly decreased the odds of clearance for robbery and aggravated assault, but not for rape. Instead, higher divorce rates significantly decreased the odds of rape clearance. This suggests that social disorganization may play a different role in the clearance mechanisms for sexual than for nonsexual violent offenses. The effects of police resource variables on clearance were not significant in the expected direction for any of the three types of incidents.     

Discriminant function sexing of the calcaneus of the South African whites

The skull and some postcranial elements, such as the humerus, femur, and tibia, have been used in their intact states for sex determination in forensic and archaeological cases. But, in practice, these bones are often recovered in fragmented states, which render them unsuitable for use in sex determination. The calcaneus is a compact bone that is able to withstand high tensile forces. Some of its parameters have been used for sex determination in American whites and blacks (1) and Italians (2). This bone has not been used for sex determination in the South African white population. Therefore, the aim of this study was to assess the degree of sexual dimorphism of the calcaneus of the South African white population sample, derive discriminant function score equations for use in sex determination, and determine the level of accuracy of its sex-determining ability. Nine parameters were measured on each pair of 53 male and 60 female calcanei of known South African white skeletons, obtained by a random sampling technique from the Raymond A. Dart Collection of Human Skeletons, School of Anatomical Sciences, University of the Witwatersrand, Johannesburg. Basic statistic and discriminant function analysis was performed on the acquired data. The basic statistics showed that all measured parameters were sexually dimorphic. Discriminant function score equations were generated for use in sex determination. The average accuracy of sex classification ranged from 73 to 86% for the univariate method, 81 to 91% for the stepwise method, and 82 to 92% for the direct method. It is concluded that the calcaneus is useful for sex determination in the South African white population.     

Police enforcement of alcohol-related laws

Data are presented that indicate that the Southern region of the United States has a much higher arrest rate for drunkenness than other regions of the country; that the state of Kentucky has a much higher arrest rate for drunkenness and for alcohol offenses in total than even the Southern region; and that Madison County, Kentucky has much higher rates than even the state of Kentucky. Data collected from court records in Madison County are then presented to describe the people arrested for alcoholrelated offenses, the circumstances of their arrests, and the legal processing of their cases. Finally, speculative hypotheses for the higher arrest rates for alcohol-related offenses in the South, in Kentucky, and in Madison County are discussed.     

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.     

Damages for Mental Distress and Bad Faith in Disability Claims

This article examines recent changes in the law in Canada in relation to the court’s willingness to acknowledge the significance of, and award compensation for, intangible loss arising from breach of contract. When a claim for benefits is wrongly refused in a disability contract, a primary goal of the contract, which is to provide peace of mind, is unrealized. Where this causes mental distress, Canadian courts are now willing to award compensation. Similarly, if an insurer conducts itself in such a manner as to attract a punitive damages award, a consideration in assessing the quantum of the award is the vulnerability of the insured. The evidentiary basis for these claims will often include expert psychological opinion. Various considerations for determining the existence, nature, and scope of the psychological issues relevant to a claim for damages for mental distress and/or punitive damages are covered in this article.     

精斑检验干扰因素的研究

目的研究精斑检验中预试验与确证试验结果的关系,以及取材时间、生活习惯对确证检验结果的干扰。方法取376例阴道拭子,用酸性磷酸酶(ACP)染色法、斑点ELISA法和抗人精PSA金标试纸法检测检测精斑。结果ACP阴性时,可检出P30、精子,性生活后精斑确证检验大部分阳性检出分布在48小时以内样本中,结果经X2检验,P<0.01,差异性显著,而不同的生活习惯对P30检测具有显著性差异。结论研究结果对精斑的检验以及检材的提取具有推广应用和指导性意义。