简析法律语言中的模糊性及模糊性的消除方法

法律语言作为一种具有规约性的语言分支,有其独特的语言风格,而其中最重要的特点就是准确性.模糊语言作为人类语言的内在组成部分,广泛存在于包括法律语言在内的各种语言变体之中,破坏语言的准确性.主要探讨的是造成法律语言中具有负功能的模糊语言的原因及消除方法.     

Biomechanical conditions of developing injuries sustained from falling from a height

Evaluation of the height from which human fell from his/her tissue and organ injuries is discussed. The authors of available publications paid the principal attention to estimation of the height from which the victim fell without consideration for the kinetic energy of the body, which depends not only on the height from which the victim fell, but on his/her body weight as well. Primary external and primary internal injuries are distinguished, which are determined by the area of contusion during landing; secondary contact injuries which form during inertial movement of the body after the first contusion, and injuries due to negative acceleration during contusion when landing (so-called signs of total body concussion) are also distinguished. The totality of all listed injuries helps estimate the total kinetic energy at the moment of contusion and determine the height of falling, with due consideration for anthropometric characteristics of the victim.     

个人与国家之间:当代法文化的价值观

法文化的价值问题属于“法统”范畴,它是任何时代的法文化必然具备的一个核心问题.当代中国提出的社会主义核心价值体系是研究当代法文化之价值问题的一个理论前提,从社会主义核心价值体系中可以解读出与法文化的价值问题息息相关的概念组合,这就是个人和国家的关系.当代法文化之“法统”既不应该是单纯的个人主义,也不是单纯的国家主义,而必然是个人与国家的有机统一,但要统一于具体语境之中,就需要引入实践智慧的概念.当代法文化的“法统”所依据的理性基础是关系理性,这种理性形态在传统中国法文化以及马克思主义理论中都有良好的思想支撑.     

行为法经济学视角下的人性假设理论框架研究简

行为法经济学视角下的人性假设理论框架主要包括四种偏离传统经济学“理性人”模型的行为模式：一是有限理性,指人们有限的认知能力;二是有限意志力,指人们有限的自制力;三是有限自利,指人们关心公平和他人的幸福;四是情境问题,指个人偏好会受情境影响.这一理论框架是规范研究的基础,也是学科体系的重要组成部分.     

论公用征收

我国的公用征收是指国家基于公共利益的需要 ,依据法律规定以强制手段取得公民、法人或其他组织的财产权利 ,并给予其公平补偿的行政行为 ,包括三个适法性条件 :其一为合法性 ,即公用征收必须依据法律规定、有法律授权方能进行 ;其二为目的性 ,即公用征收必须应公共利益之需而为之 ;其三为公平补偿 ,即公用征收必须事先予以公平补偿     

Predators and the Public Interest — the 'Big Four' and Multi–Disciplinary Practices

This article explores the growing body of professional and academic support for Multi–disciplinary Practices (MDPs) which combine the provision of legal, accounting, financial, and other 'professional' services. In doing so, it traces the development of MDPs in the UK and assesses the leading claims which have been advanced in favour of these 'one stop' providers. It is suggested that support for MDPs is located within the emergence of a new professional paradigm which places a high premium on quality of service and the resolution of complex problems and is based on a narrow conception of the public interest which is closely if not solely associated with promoting consumer welfare. This, itself, is rooted in a deregulatory vision of the world – that is, the view that the breaking down of barriers (professional, legal, and cultural), which restrict competition and impede consumer choice, is in the 'public interest'. The article challenges these views, arguing that many of the alleged consumer benefits which are said to flow from the formation of MDPs are at best speculative and that, in any case, a proper conception of the public interest is one which extends beyond a narrow concern for consumer interests.     

论影响职务过失犯罪刑事责任程度的因素

职务过失犯罪刑事责任的程度,是确定职务过失犯罪主体刑事处罚轻重不可缺少的方面。职务 过失犯罪主体的职权所内涵的注意义务要求的不同、相关心理内容所反映的主观恶性的不同、行 为违反规范的数量的多少及犯罪结果的严重程度是影响职务过失犯罪刑事责任程度的因素。     

论法律概念的实践逻辑——兼论案例教学法的理论基础

法律概念与自然科学概念至少存在两个方面区别:法律概念具有实践性,自然科学概念具有理论性;大部分法律概念具有类同性,大部分自然科学概念具有相同性。实践性构成了法律概念的本体论特征,类同性构成了法律概念的逻辑特征。因此,法律概念具有自身的实践逻辑。兰戴尔最先提倡的案例教学法是建立在一种有缺陷的法律科学构想基础上的。法律概念的实践逻辑构成案例教学法的理论基础。     

英美诽谤法的特殊抗辩事由研究

英美诽谤法为实现保护言论自由和尊重个人名誉的平衡,设计了诸多精细的特殊抗辩事由,包括以真实性作为完全抗辩的依据;涉及公共利益的、基于事实的、真诚的公允评论;法律授予特殊场合的特权抗辩(绝对特权和受约制特权)及制定法规定的严格责任抗辩事由.这些抗辩事由使英美法诽谤法实现了法益平衡的目的.     

权利观念的限度

权利观念作为法治条件下人们的思维观念,以法律权利为内容,以权利的存在为前提,并以一定的观念形式表现出来。由于人的观念本身的主观性,法律权利的有限性,以及权利存在本身也存在着一定的相对性,这就决定了权利观念存在着一定的限度。其局限性表现为权利不是绝对的,它受制于一定的公共利益,以国家财政负担为其成本条件,取决于公共资源的私人化配置,一定的权利总是意味着一定的义务与责任。     

MARIJUANA DECRIMINALIZATION RESEARCH

It can be argued that any objective reexamination of the marijuana laws and reformulation of public policy should necessarily be undertaken within some type of cost/ benefit perspective. As such, a paradigm might be structured which could examine the costs and benefits of the criminalization of marijuana vs. the benefits and costs of its decriminalization. On the one hand, there are the psychosocial costs of marijuana use which include any effects which might flow from the use of the drug. What the benefits of marijuana use might be, beyond the euphoric states and feelings of well being it offers, are yet to be fully determined. Yet by contrast. there are the human, social, and economic costs which flow from the criminalization of marijuana use. It is argued in this commentary that this paradigm can be used as a guide for decriminalization research. A variety of data sets and historical issues are briefly examined which fall within the parameters of this paradigm, and a series of research protocols which flow from the paradigm are addressed.     

Bankruptcy Regulations and the New German Insolvency Law from an Economic Point of View

Some fundamental incentive effects are analyzed which result from alternative insolvency law arrangements. Thereby ex-ante effects, which refer to decisions before the occurrence of the insolvency—in particular the credit decisions and the use of credit, are distinguished from ex post effects, which refer to the time after insolvency has begun—in particular the utilisation of the seizable assets of the debtor. A brief discussion of some fundamental criticism of the former West German bankruptcy and composition regulations follows and the essential changes of the new Insolvency law which has come into effect on January 1, 1999 are presented. Finally a procedure is discussed which could contribute to the solution of some further existing incentive problems.     

Wrongful birth and the politics of reproduction: West German and English law considered

This article considers the law relating to compensation in tort and contract for failed sterilizations and failed abortions leading to the birth of an unplanned but healthy child in the Federal Republic of Germany and England. It uses a policy-based analysis which takes the social construction of gender as a significant factor in judicial decision making. It criticizes existing literature for failing to take into account gender divisions in society and points to ways in which both the framework within which wrongful birth cases are discussed generally and the limitations which have been placed on recovery specifically reflect gender stereotyped notions of female and male behaviour and sexuality. I conclude that there are three main areas of concern in the wrongful birth cases: a) the inadequate recognition which the law accords to women's work in the home when awarding damages for maintenance of the unplanned child to majority; b) the awarding damages exercised by the politics of abortion, which can lead to undue restrictions on recovery; and c) the difficulties which the law experiences when attempting to conceptualize an interference in a woman's procreative autonomy in the same terms as an interference in a typically 'male' sphere of life, such as professional autonomy. Thus there is an urgent need to reconsider the categories of the law of obligations such as 'damage' and 'compensation', which are central to the principle of individual responsibility for harm caused, in order to reveal their gendered content and differential effects.     

由一起碰撞案件看船舶挂靠经营中的侵权责任

在现行法律中很难找到专门针对船舶挂靠经营的规定,这使得关于船舶挂靠经营过程中产生的侵权责任的意见难以得到统一。北海海事法院对2000年发生的一起船舶碰撞纠纷进行了审理,其中涉及对船舶挂靠经营侵权责任的处理,该判决对上述问题的解决提供有益的帮助——船舶挂靠经营是一种合法行为;就挂靠人经营中所致的侵权责任,挂靠人与被挂靠人都是责任主体,并应承担无限连带责任。     

Adapting the Modern Law Novel: Filming John Grisham

The essay looks at the process of adaptation of fiction to film. It seeks to build on earlier work which suggested that this process required to be examined in the political and social context within which the adaptation occurred. It focuses on the work of John Grisham and notes how the fiction of Grisham can be divided into thrillers and social issues novels. These in their turn have been turned into films in which, in the process of adaptation, their themes have become both sharper and more focused. They have also in this process become less critical of the social and political structures within which Grisham's fictional protagonists operate. The essay seeks to provide an explanation for this paradox which relates to the fore-mentioned notion of contextual adaptation.     

Has the erosion of the medical marketplace ended?

This paper updates tests of the validity of three models of medical price inflation: a standard model, in which changes in demand press against inelastic supply; a dynamic version of the standard model, in which high levels of insurance induce high rates of product innovation and development; and a model of increasing inefficiency, in which consumers have weak incentives to search out efficient suppliers. Earlier statistical support for the third model has weakened, which provides some evidence that the regulatory and competitive initiatives of the last decade are having their intended effects. But time series measures of medical prices upon which the statistical evidence relies have important methodological problems, so other types of evidence are useful. Trends in expenditure in other countries and in HMOs suggest that the most important explanation of medical price inflation is the dynamic version of the standard model, although the other models have some validity as well.     

The Fundamental Features of Legal Rationality

Abstract. The aim of this paper is to clarify the logical structure of a code connecting together some distinctions already introduced by different authors: a distinction between primary norms and secondary norms, the latter being implied by the provisions describing institutions in the indicative; a distinction between norms the content of which concerns a state and those the content of which concerns a behaviour which is itself function of several states; a distinction, among the primary norms, of the norms of competence by which a normative power can be delegated to an individual; lastly a distinction between regulative rules and constitutive rules.     

Sampling--how big a sample?

It is thought that, in a consignment of discrete units, a certain proportion of the units contain illegal material. A sample of the consignment is to be inspected. Various methods for the determination of the sample size are compared. The consignment will be considered as a random sample from some super-population of units, a certain proportion of which contain drugs. For large consignments, a probability distribution, known as the beta distribution, for the proportion of the consignment which contains illegal material is obtained. This distribution is based on prior beliefs about the proportion. Under certain specific conditions the beta distribution gives the same numerical results as an approach based on the binomial distribution. The binomial distribution provides a probability for the number of units in a sample which contain illegal material, conditional on knowing the proportion of the consignment which contains illegal material. This is in contrast to the beta distribution which provides probabilities for the proportion of a consignment which contains illegal material, conditional on knowing the number of units in the sample which contain illegal material. The interpretation when the beta distribution is used is much more intuitively satisfactory. It is also much more flexible in its ability to cater for prior beliefs which may vary given the different circumstances of different crimes. For small consignments, a distribution, known as the beta-binomial distribution, for the number of units in the consignment which are found to contain illegal material, is obtained, based on prior beliefs about the number of units in the consignment which are thought to contain illegal material. As with the beta and binomial distributions for large samples, it is shown that, in certain specific conditions, the beta-binomial and hypergeometric distributions give the same numerical results. However, the beta-binomial distribution, as with the beta distribution, has a more intuitively satisfactory interpretation and greater flexibility. The beta and the beta-binomial distributions provide methods for the determination of the minimum sample size to be taken from a consignment in order to satisfy a certain criterion. The criterion requires the specification of a proportion and a probability.     

试论我国社会主义民主法制建设的途径

在中国革命和建设的不同历史时期形成的中国共产党三代领导集体领导人民治理国家的过程中,都对社会主义民主法制问题作过许多重要的论述和决策,形成了具有中国特色的社会主义民主法制思想,推动了新时期我国民主法制建设的发展。     

医疗行为中医务人员“意思表示”的法律效力分析

“意思表示”是医务人员在医疗行为过程中将其期望发生某种法律效果的内心意思以一定方式表现于外部的行为,是医疗行为的核心内容。针对当前临床医疗实践中医务人员意思表示的具体情况,本文分析了医务人员“意思表示”的构成要素、表示形式及法律效力,尤其是具体分析了意思表示不真实情况下医疗行为的法律效力,对医院规范管理医务人员的医疗行为具有一定的积极意义。