我国刑事立法中存在的若干技术问题

我国刑法不少地方把犯罪主体称为“犯罪分子”,在语言表述上欠准确,因为它不能涵盖单位犯罪主体,带有某种人格歧视,而且用词不经济;在应当使用阿拉伯数字的地方使用汉字,违背了国家语言字工作委员会等部门联合发布的《关于出版物上数字用法的试行规定》及GB／T15835－1995国家标准;在定罪标准方面,有的规定必须“情节严重”,有的必须“情节恶劣”,在司法实践中难以掌握;在涉及财产数额的定罪量刑方面有的规定“数额较大”,有的则规定了非常具体的数额,说明定罪量刑的标准不够统一。     

On Law and Morality. A Dialogue

Abstract. The dialogue focusses on the distinctions and connections between law and morality. Morality is seen as axiological in character, whereas law is deontological. The possibility of a conceptual tie between goodness (axiology) and duty (deontology) is firmly disputed. Habermas's discursive foundation of ethics is criticized because it seems to confer on moral principles the status of a priori synthetic truths. Every moral idea has a cultural relativity which is not taken into account by Habermasian dialogue ethics. The moral and the legal points of view are kept separate: A law which does not satisfy the requirements of a "minimum content" of natural law is not said to be "law," but simply falling short of moral criteria. The possibility of introducing rational guarantees into moral discourse is not denied, but doubt remains as to whether there are "right answers" to moral questions.     

论法治社会权力与权利关系的理性定位

“权力”与“权利”是公法学研究中最为常见的一对基本范畴,也是近些年来被我国法学界所广为关注的一个重要问题。本文认为,从人类历史发展的过程来看,“权力”与“权利”的“不平衡”是长期的,而“平衡”则是短暂的。特别是在近现代世界各国的宪法确认了“人民主权”的基本原则与以“控权”为基本特征的“法治”治国方略之后,“权力”来源于“权利”、服务于“权利”并保障与促进“权利”得以实现。这种新型的“权力”“权利”关系说明,“权利”相对于“权力”的优越地位得到了进一步的强调与肯定,成为现代国家民主法治发展的重要标志。     

On Law and Logic

Abstract. The main purpose of this paper is to explore the role played by logic in the legal domain. In the traditional conception which underlies the movement of codification, judges are able to find in the legal system (the Master System) a unique answer for every legal problem. This entails its completeness, consistency and the possibility of deriving from it the contents of all judicial decisions. Although the ideal model of this conception is supported by important theoretical and political ideals, it has significant shortcomings. The elements of normative systems (Master Systems) are "norms" and not mere "norm-formulations." A "norm" is the meaning attributed to normative linguistic expressions. The set of all normative expressions, such as statutes, codes, etc. forms what is called the Master Book. One of the main problems for the ideal model is the identification of a normative system behind the Master Book. Interpretative arguments are the tools designed to solve these problems. Although the requirements of the model are not totally fulfilled in actual practice, it remains as an effective ideal rational goal behind legal activities linked to adjudication and most theoretical approaches to law.     

民事合同与商事合同之辨

民事合同与商事合同在当事人认定、交易结构的繁简、"名""实"相副与否、"穿透"合同关系的允许与禁止、合同瑕疵的容忍抑或矫正、商业逻辑的地位及作用、坚守"正位"抑或"错位"处理"火候"把握等方面存在差异.认识、重视和研讨之,目的 和意义之一是,在法律适用时必须顾及商事合同的特殊性,不得僵硬地套用关于民事合同的规定.目的 ...     

Vladimir Shapoval: "The CEC Is Destined to Be the Scapegoat"

"The law is harsh, but it is the law"—the well-known ancient Roman saying is entirely suitable as a brief synopsis of the Lb.ua interview with the chairman of the Central Election Commission (CEC), Vladimir Shapoval.

"Any electoral legislation, I emphasize, any, will always be 95 percent the product of political expediency. Always. This way gives them an advantage—so be it." This is how he calmly parried my emotional "How can the advantage of the strong be codified in the law (!), and the weak essentially have no chance? What can you do, how can it be?" "All this ‘whining and crying,’ say, the law is this and that in substance, I do not accept it. The laws were adopted—so we will follow them. You cannot get away from it," he added.

It might seem to someone who does not know Vladimir Nikolaevich that the chief vote-counting official is being clever, "covering up" the "distortions" of the authorities "at the local level." He is in fact speaking frankly. The chairman of the Central Election Commission formed on the eve of the 2007 preterm parliamentary elections by a "coalition"—a retired Constitutional Court of Ukraine (CCU) justice, and a doctor of legal sciences who is an active member of the High Council of Justice (HCJ), he can permit himself that. Shapoval contrives to call things by their names: "How the law is written is another matter. And its parts are written abominably," he states bluntly.

In view of this, my discussion with Shapoval—formally tied to the start of a local elections campaign—went far beyond the bounds of a discussion of the legislation on this topic, and even the specifics of the campaign. The more so as I had already discussed this in detail with CEC Deputy Chairman Andrei Magera. Vladimir Nikolaevich, without concealing his indignation, related just what the HCJ is really afraid of (and it turned out it was not at all, or more precisely not only, what they are portraying it to be). Relying on nine years of experience as a CCU justice, he elucidated the risks of the invalidation of the 2004 constitutional reform by the current Constitutional Court—"only those who have face can lose it." Sketching out the situation in the body politic, he summed up, "If the Party of Regions (PoR) does not win the local elections, many questions will arise."     

从实体自我到关系自我——后现代心理学视野下的自我观

现代主流心理学在考察"自我"时,假设了我们每个人都有一个作为精神实体而存在的"我",它是个体存在的核心,统领着我们的一切.后现代心理学对这种实体自我观进行了猛烈批判,认为根本就不存在所谓真实的实体自我.后现代心理学从社会建构主义出发,将自我视为关系的创造物,是我们在与他人的关系中通过语言建构而成.它将自我理解为关系性的、多元的、变化的、去中心的.从现代社会向后现代社会的转变过程中,人们自我意识观的变化要经历策略操作者、混杂人格和关系自我这三个不同的阶段.后现代心理学自我观的提出对我们理解自身、解决自身的心理问题具有重要意义.     

腹部穿透创致腹腔积血的法医学鉴定

在法医学鉴定中,当暴力所致的原发损害与医疗过失行为造成的继发损害并存时,应区别“不可避免的”继发损害和“可以避免的”继发损害,并将原发损害与“不可避免的”继发损害一起,作为损伤程度鉴定的依据,而不能将“可以避免的”继发损害也作为损伤程度鉴定的依据。《人体重伤鉴定标准》第七十二条规定了外伤后腹部积血的鉴定原则,如何应用该条款评定损伤程度,需对原发损害与继发损害加以区别,同时,有必要对这一条款进行必要的修改。     

The Cultural Defense

Because of immigration in the West, increased cultural diversity poses a variety of problems for the criminal justice system. This paper examines whether a so-called "cultural defense" ought to be allowed as a freestanding defense to a criminal charge. Such a defense would "negate or mitigate criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based on the actor's cultural heritage or tradition." The cultural defense, as a formal defense, and the use of cultural evidence in order to buttress one of the traditional defenses, are distinguished. Three cases are discussed to illustrate the issues. The possible similarity of the cultural defense to an ignorance or mistake of law defense is then considered. The latter is accepted by such theorists as Gunther Arzt and George P. Fletcher and also apparently in German law, but it is rejected by Jerome Hall on the ground that it undermines the objectivity of the criminal law. The similarity, however, is shown not to hold. It is concluded that a freestanding cultural defense should not be allowed.     

宪法学:难以抗拒的生活之学--兼论学习宪法学的意义

长期以来,我们没有把学习宪法学的意义讲准确、讲清楚、讲全面、讲透彻,从而难以最大限度地激发起学习主体的学习兴趣与热情,不利于在全社会营造"认真学习宪法学"与"认真对待宪法学"的氛围.要改变这一状况,关键是要以变"要我学习宪法学"为"我要学习宪法学"为一个重要目标,始终把宪法学当作生活之学,始终把学习宪法学这样一种要求与学习主体的愿望紧密结合,始终把学习宪法学这样一种活动与学习主体的生活紧密结合.只有这样,学习宪法学的意义才会清楚而不模糊,深刻而不肤浅,具体而不空洞,水到渠成而不牵强附会.     

The "utility" principle within the scope of forensic determination of blood kinship using serostatistics

A "realistic" prior probability is always based on case experience (Akten-a-priori). In serological opinions pertaining to parentage, the realistic prior probability is only one piece of information in the whole body of evidence before the judge and does not have any special significance per se. There is no such thing as a "neutral" prior probability. It either implies "ignorance," in which case it cannot be "information," or it must be taken in connection with the utility principle, in which case it is not a "probability." The utility principle is defined in law and cannot be expressed in figures. The utility principle takes effect only when the judge reaches a decision (on the basis of all the evidence before him). It determines the relative importance of the participant's objects of legal protection which are at issue in the case. The expert is bound to apply a neutral utility component, i.e., in a two-hypothesis case (the normal situation) the significance of both the null and the counter hypothesis must carry the same weight. A null and/or a counter hypothesis can combine several single hypotheses; the mean value of their frequencies is taken. As a rule, one should avoid using a "prior case probability" ("Akten-a-priori") when calculating a W value. An "expectation of error" should be as realistic as possible and hence be obtained using a "prior case probability."     

Asymptomatic HIV as a disability under the Americans with Disability Act

The Americans with Disability Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are indeed protected under the ADA, but that the analytic framework thus far employed by the courts is flawed. Asymptomatic HIV is a protected disability not because it is independently debilitating, but because the prejudices and fears of other may prevent HIV-infected persons from fully participating in society. The ADA was enacted to prevent exactly this type of discrimination.     

Yet another method for marking incisal edges of teeth for bitemark analysis

Over the years many methods have been proposed and presented for marking or "highlighting" the incisal edges of anterior teeth on a dental stone model -- one of the critical steps in production of transparent overlays for bitemark analysis. A method is presented here that is an extension and refinement of the "paint the edges" method shown at least as early as 1966 by Gustafson. This method uses "invisible ink" and ultraviolet illumination to produce a very high contrast image of the incisal edges of the teeth on the model. The advantages of this new method are that it is nondestructive, it does not leave visible marks on the models, operator subjectivity in selecting the portions of anterior teeth to be highlighted is reduced, and the author submits that this technique lends itself to easy construction of overlays using computer image-processing software such as Adobe Photoshop and ImageJ.     

PUBLIC OPINION AND THE FOUNDATION OF THE JUVENILE COURT*

Over 100 years ago, juvenile courts emerged out of the belief that juveniles are different from adults—less culpable and more rehabilitatable—and can be "saved" from a life of crime and disadvantage. Today, the juvenile justice system is under attack through increasing calls to eliminate it and enactment of statutes designed to place younger offenders in the adult justice system. However, little evidence exists that policy makers have taken the full range of public views into account. At the same time, scholarly accounts of calls to eliminate the juvenile justice system have neglected the role of public opinion. The current study addresses this situation by examining public views about 1) abolishing juvenile justice and 2) the proper upper age of original juvenile court jurisdiction. Particular attention is given to the notion that child‐saving and "get tough" orientations influence public views about juvenile justice. The analyses suggest support for the lingering appeal of juvenile justice among the public and the idea that youth can be “saved,” as well as arguments about the politicization and criminalization of juvenile justice. They also highlight that the public, like states, holds variable views about the appropriate age of juvenile court jurisdiction. We discuss the implications of the study and avenues for future research. Why is it not just and proper to treat these juvenile offenders, as we deal with the neglected children, as a wise and merciful father handles his own child whose errors are not discovered by the authorities? Why is it not the duty of the state, instead of asking merely whether a boy or a girl has committed a specific offense, to find out what he is, physically, mentally, morally, and then if it learns that he is treading the path that leads to criminality, to take him in charge, not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, to make him not a criminal but a worthy citizen.     

电商领域知识产权“通知—删除”规则的困境与出路

《电子商务法》“通知—删除”规则呈现出滥用和错误通知概率高,损失风险大,实质作用可能得不到发挥等问题,源于其对电商知识产权侵权治理效果的积极追求,以及因此形成的对传统“通知—删除”思路的改动式借鉴——允许在认为侵权情况下发出通知但不提供恢复选择,结果是这一“通知—删除”规则不具备诉前禁令的条件却具有类似的效果。现有完善思路意图让这套规则更接近真正意义的诉前禁令,却因忽视了两者的本质区别而难有成效。电子商务治理应该注重发挥利用平台的管控力,基于此形成的平台自治能够通过平台的实质性介入引导纠纷解决和提高处理效率,从而控制滥用、降低风险,缓解规则存在的弊端。实现平台自治一方面需要在不违背法律价值和不降低法律要求的前提下通过“约定—同意”的方式探索自治空间;另一方面需要在规范层面赋予平台一定的自治权限,让平台有权根据实际情况在收到反通知后确定采取必要措施的期限。     

为职权主义辩护

"职权主义"最早起源于欧陆,最初的含义系查清案件事实的方法,后演变为大陆法系国家普遍的诉讼形态。"职权主义"与"当事人主义"的对立并非历史的产物,而系诉讼法学者的理论创设。"职权主义"的核心内涵也非一成不变,随着时代的发展在不断丰富。当代的"职权主义"可界定为"诉讼以社会利益优先为导向、国家权力为主导、实质真实为目标,审前程序凸显侦检机关的优势侦查权,审判程序凸显法官主导控制权的正当程序模型"。时下学界对"职权主义"存在较大的批评,这主要源于对传统职权主义诉讼的误解以及对当事人主义的理想化。中国因国家权力主导的制度背景、追求客观真实的司法传统以及原有职权主义诉讼的基本构架,既应避免进入"当事人主义"或"对抗制"的陷阱,也不应设立理念混乱、制度杂糅的"混合式诉讼",而应坚持走职权主义的道路。     

Death caused by "attack dog" bites. A contribution to current discussion

Two cases of fatal dog-bite incidents caused by males of the "American Staffordshire terrier" breed currently known as "fighting dogs" are reported. Both happened in elderly women, one of them handicapped. Reconstruction of the accidents revealed some peculiar characteristics of these dogs, namely the ability to attack undesirably and forcefully as well as the enormous grip of their jaws. Considerable public attention has been drawn to some breeds which seem to predominate in dog-bite statistics and are summarized as "pit bulls". For the animal behaviourist it is not justifiable to condemn only the dog and blame it solely for damage inflicted. Scientific casework has to encompass the situational background of any case and the animal's holder because there is often a close association between the character of the dog and its human counterpart. Implications of such incidents for public safety policy and forensic science are to be discussed.     

中国民法典集体所有权的理解与适用

集体所有权在中国法学界一直是个解释和理解起来较为复杂和困难的问题.因为,它不仅涉及到民法,还涉及到作为社会主义经济制度基础的公有制和作为上位法的宪法的规定等.理解集体所有权,我们可以"集体企业"与"集体土地"作切入点.集体企业定位上属于企业法人,如今《民法典》更是进一步将其规定为营利法人.但集体土地不能像集体企业一样,...     

裁判形成的思维过程

法律裁判并非仅仅通过推理即可形成。法律推理其实是为判决结论提供正当理由的过程,可是推理本身是无法为自身的"前提"提供出处的。这就需要将裁判思维的视野扩大到推理"前提"的获得以及获得之前的心理活动上。如果将前提的获得称为发现,将结论是否合理的证明过程称为证成,那么裁判思维就可以被分成"发现"与"证成"两个脉络。     

受虐杀夫引发的法律问题

对长期深受丈夫暴力虐待而将其杀死 ,是否属于正当防卫或防卫过当 ,即暴力虐待是否属于“正在进行的不法侵害” ,《刑法》第 2 3 2条中的“情节较轻”中的情节是指“犯罪情节”还是“量刑情节” ,怎样才算“情节较轻” ,进行了深入的探讨。