胎儿的准人格地位及其人格利益保护

胎儿是一种人类生命,但又不是人;其不具有现行法规定的民事权利能力,但又必须享受一些权益的法律保护。对于胎儿的人格地位,民法理论素有争议。胎儿属于准法律人格者。准法律人格即非完全法律人格者亦非完全无法律人格者。它是法律立足于胎儿的生命特质、胎儿保护的价值理念以及民法人格制度的立法逻辑所作出的人格定位。准法律人格者享有不同于自然人的特殊的人格利益及其权益保护规则。     

The legal concept of personhood in Colombia: are there biological reasons to change it?]

Nowadays, as a consequence of scientific advances in embryology, genetics and assisted reproduction techniques, the scientific community ask for new laws to establish new parameters to use with these recent discoveries. Discoveries that have changed the legal concept of "person". In many countries this concept is absolutely useless when facing new techniques such as cloning, stem cell research and embryo storage. That is why it is necessary to change its definition to guarantee the right to life and give a better protection to human embryos.     

司法解释放弃定义具体行政行为的策略检讨

现行行政诉讼法建立了以具体行政行为为中心的行政诉讼制度体系,如何理解具体行政行为具有极为重要的理论意义与法律适用意义。在先后两个系统的司法解释中,最高人民法院采用了完全不同的解释策略,对具体行政行为先给出了明确界定,后又基于各种考虑而放弃。司法解释先后态度的不同,对我国的行政行为法理论和行政诉讼制度的理解与完善构成了一定影响。当前,我国行政诉讼法进入修改阶段,通过借鉴其他国家或地区的经验教训,重新认识和评估具体行政行为定义的价值,可以为发展我国的行政行为法理论、重新认识行政诉讼制度并更好地做好立法修订工作提供另外一种参照视角。     

Human cells, tissues, and cellular and tissue-based products; establishment registration and listing. Interim final rule; opportunity for public comment

The Food and Drug Administration (FDA) is issuing an interim final rule to except human dura mater and human heart valve allografts, currently subject to application or notification requirements under the Federal Food, Drug, and Cosmetic Act (the act), from the scope of the definition of "human cells, tissues, or cellular or tissue-based products (HCT/P's)" subject to the registration and listing requirements contained in 21 CFR part 1271. That definition became effective on January 21, 2004. FDA is taking this action to assure that these products, which are currently subject to the act and therefore regulated under the current good manufacturing practice regulations set out in the quality system regulations in 21 CFR part 820 are not released from the scope of those regulations before a more comprehensive regulatory framework applicable to HCT/P's, including donor suitability requirements, good tissue practice regulations, and appropriate enforcement provisions, is fully in place. When that comprehensive framework is in place, FDA intends that human dura mater and human heart valves will be subject to it. FDA intends to revoke this interim final rule at that time.     

人体器官移植违法行为犯罪化研究

人体器官移植违法行为呈高发态势,某些人体器官移植违法行为具有严重社会危害性,符合犯罪本质属性,应当将其犯罪化认定。目前,我国刑事立法及司法对此类行为的规制和惩罚尚呈空白状态,刑法有必要对这些新型犯罪进行规制,并将其分别置于刑法分则第四章“侵犯公民人身权利、民主权利”和第六章“妨害社会管理秩序罪”之中。     

论胎儿生命利益的刑法保护

自然人包括生命权在内的各项基本权利始于出生,终于死亡。胎儿因缺乏主体资格,从被侵害法益的层面来看,无法成为刑事被害人。现行刑法对伤害胎儿的行为按故意伤害处理,这与行为的本质和行为人的主观故意内容均存在较大的出入。无论从胎儿被侵害的可能性、与母体的相对独立性、还是从刑法与其他部门法的协调性等角度出发,对侵害胎儿的生命利益的行为都有必要设置独立的罪名。     

中德履责之诉适当性研究进路之比较

学界与实务界就履责之诉的适当性长期未能形成根本性共识。我国的履责之诉适当性的研究是从界定行为类型入手,而这一研究进路是导致我国关于履责之诉适当性争议不休的根源。从履责之诉的适当性的研究进路入手,分析德国关于履责之诉适当性的研究思路,借鉴德国的诉讼目标模式,将是解决争议的新思路。     

War as a pretext to wave the rule of law goodbye? The case for an EU constitutional awakening

The war in Ukraine triggered significant changes at the European Union level. The speed at which the EU has achieved progress on sanctions, migration and defense is particularly impressive. But the Russian aggression against Ukraine has also served as a pretext for putting aside internal discussions about the rule of law, and provided additional political rationales for inaction against Member State governments responsible for the violation of European values, as well as triggered the deepening of double standards in several fields. Against this background, the paper argues that using this crisis as a justification for further inaction in the context of EU values is not a sustainable course of action. The Union must not delay further the need to act to halt the insidious erosion of democracy and the rule of law within its own borders both at the national and supranational level.     

Intellection and Indiscipline

A discipline will usually become the object of study and its relationship to other disciplines a moment of concern when its borders are precarious and its definition in dispute. Law, 'the oldest social science', is arguably both prior to discipline — it emerges initially and most forcefully as a practice — and without discipline, its object being potentially all human behaviour. If law is necessarily between and among disciplines, both prone to moonlighting and everywhere homeless, it will also always be in some mode of scholarly crisis. Certain conclusions follow. Law is paradoxically dependent upon other disciplines for its access to the domains that it regulates. The greater its epistemic dependency, however, the slighter its political acknowledgment of that subordination. Which allows a positive thesis: the epistemic drift of law can carry the discipline to a frank acknowledgment of the value of indiscipline both to novelty and intellection.     

The death penalty: Down but not out in the summer of '02

This paper discusses questions of borders, communities, and refugees through an examination of the work of film director Theo Angelopoulos, in particular his so‐called “Balkan trilogy,” which includes Eternity and a Day. In these films, Angelopoulos looks at the nature of borders and communities and at what they do to people in general and refugees in particular. I argue that the refugees cannot be placed in any straightforward fashion according to the logics of political sovereignty and national divisions. They are a heterogeneous excess from the constitution of borders and divisions, yet by making visible this heterogeneity, Angelopoulos shows the contingency of political and national borders. As a consequence, the critique of the injustices resulting from existing borders must start from what is heterogeneous to them. Only in this way is it possible to transform existing structures. However, this does not mean that politics should aim simply at the elimination of borders and exclusion. Rather, we must accept the ineradicability of borders and exclusion while contesting any particular ones.     

On the legality of cannabis; the responsibility of the expert witness.

The controversy concerning the taxonomic status of the genus Cannabis has now advanced to a stage where the forensic scientist has limitations to his testimony in identification of "marihuana" plant material in jurisdictions where the law defines "marihuana" as Cannabis sativa L. Whether the genus Cannabis is monotypic or polytypic is as yet uncertain, but recent taxonomic reviews weigh heavily toward the existence of three or more species within the genus. The taxonomists or forensic scientists cannot, therefore, positively state for fact that C. sativa is the only species existing within the genus Cannabis. The popular concept of "marihuana" is actually based on the chemical characteristics of the plant Cannabis, rather than on the taxonomic classification. This is evident in its inclusion as a drug or hallucinogenic substance under Federal and local statutes. It is therefore proposed that "marihuana" be redefined legally to include all members belonging to the genus, in jurisdictions where legal definition warrants such an act, or that these jurisdictions follow the format set forth by Federal rulings.     

The concept of harm reconceived: A different look at wrongful life

In wrongful life litigation a congenitally impaired child brings suit against those, usually physicians, whose negligence caused him to be born into his suffering existence. A key conceptual question is whether we can predicate “harm” in such cases. While a few courts have permitted it, many courts deny that we can, and thus have refused these children standing to sue. In this article the author examines the wrongful life cases and literature enroute to a broader consideration of harm. This literature, and philosophical discussions of harm generally, rely on a definition which ascribes harm by comparing an individual's current condition with that in which he would otherwise have been, but for the allegedly harmful event. The author shows this definition to be conceptually and morally flawed. A superior general definition is offered which, when then applied to wrongful life cases, shows that we can easily ascribe harm in these cases and can find clear potential for tort liability.     

法律是什么?——一个安排秩序的分类体系

从人类学的角度看,法律是一个安排秩序的分类体系,它安排了事物、行为、意义的秩序。每个社会、每种文化都有它与众不同的分类体系,由此产生了作为“地方性知识”的法律的多元格局。地方性规范比国家法律容纳了更富多元性的人们对人生意义的思考等非技术性意义因素,法律多元因此不可避免。不同的分类体系之间的差异会导致法律冲突的发生,但是作为不同分类体系的国家法律与地方性规范之间仍然有可沟通性。对于国家的法治建设来讲,不是如何去消除多元法律,而是如何处理差别。     

脑死亡若干法律问题研究

脑死亡是刑法学中与人的生命保护界限密切相关的问题。脑死亡的新观念虽然面临挑战 ,但其科学合理性毋庸置疑。脑死亡的时间应当以全脑机能不可逆性丧失时为准。脑死亡的概念与判定标准 ,有必要在器官移植法中予以规定。     

Governing Iberian Rivers: from bilateral management to common basin governance?

Traditionally, international water resources have been managed by riparian states based essentially on a technical hydraulic approach, addressing navigation concerns, water flows at the border and shared hydraulic structures, besides the definition of political borders. During the 1990s, the possibility of a paradigm change emerged, where a “technical hydraulic management approach” seemed to be giving way to a more “political environmental governance approach”. Yet, in many cases, this change did not ensue. This article argues that several riparians are trapped in stalemate due to a too strong sovereign approach to their water relations. Adopting a critical perspective on hydro-hegemony, this article argues that this framework of analysis is too limited since it is embedded in a Westphalian concept of sovereignty. To support this argument, the article draws on the Iberian Peninsula water politics. These riparians are still embedded in notions of territorial sovereignty, not being able to take on a holistic water basin governance regime embedded on considerations of equity, human rights and social justice. The article concludes that it is vital to move beyond a static sovereignty-based analysis of riparian relations and engage in a dynamic discussion of different water governance models and their consequences concerning peace and development.     

Lethal Injection in Uncharted Territory: The Need to Ensure the Humanity of Current Death Penalty Practices

When lethal injection was first legalized in the late 1970s, many people viewed it as safe, reliable, and humane. Today, however, lethal injection does not always perform as promised. Due to difficulties with sourcing lethal injection drugs, states are utilizing untested lethal injection protocols, with little knowledge or experience to guide them. This article argues that lethal injection reform requires regulation similar to that for human subject research, and that the practice of utilizing untested lethal injection methods comes very close to falling under the federal statutory definition of “human subject research“ formulated in the Common Rule. This article argues further that even if one decides that it does not, the practice of lethal injection today is the type of conduct that the human subject research regulations were designed to correct. Moreover, society has an interest in ensuring that executions are conducted in a way that reduces pain and suffering to the lowest extent possible. As such, lethal injection ought to receive further review and oversight to ensure that it comports with reasonable notions of humanity.     

《國家人權行動計劃》應該就是落實憲法——《國家人權行動計劃》有感

人權是人之作爲人所秉有的基本權利和道德尊嚴，它們是普遍的、具體的，甚至是無條件的。闢于人權的理論和學説在中國的傳統思想和西方的經典作家那裹，都有過深刻而豐富的論述，細究起來，又闢涉到普遍論與特殊論、公民政治權利與社會經濟文化權利等相闢問題的争議。總的説來，經過漫長的人類歷史的演進，尤其是二十世紀以來的世界文明的曲折變遷，在當今世界，人們對于人權的認識已經達到了一個基本的共識，那就是無論種族、階級、性别有何種差别，無論經濟近况、文化程度和國家體制有何等不同，作爲人，尤其是作爲一個生命的個體，他們共享着人之爲人的基本價值、權利和尊嚴，這種普世主義的人權観是各種人權理論的基石，也是《世界人權宣言》的首要原則。當然，在普遍性的基礎之上，現代人權理論又根據人類歷史的實踐，     

The nature of innovation in emerging industries in China: an exploratory study

In China, traditional manufacturing industries have been world leaders in low-cost manufacturing for overseas multinationals. It is well-known that these “traditional industries” depend on overseas parent firms for innovation. In recent decades, China’s desire is to encourage and promote innovation-based emerging industries within its borders. By definition, “emerging industries” are composed of domestic Chinese firms without an overseas parent firm. We know very little about the innovation practices in these emerging Chinese industries; we hypothesize that the innovation practices in these firms are quite different from traditional Chinese industries with overseas parents. The Kunshan region in China has attracted both traditional and emerging industries that have contributed to unparalleled economic growth in the region. This is a significantly large region with a population of 1.65 million with a regional GDP of USD 32 billion (2010). In this study, we use survey data from companies in this thriving region to compare R&D and innovation practices of the firms in the traditional and emerging industries in this region. We do not know enough about the innovation practices of emerging industrial firms in China, who may have a profound influence on the industrial China of the future much like South Korean firms such as KIA, Hyundai, Samsung, etc. The findings of this exploratory study based on data collected from the Kunshan region enables us to recommend avenues for future research.     

论环境时代宪法对其他生命物种权利的尊重

从物种多样性保护这一生态学上新的理论和方法出发,通过分析“生命平等”这一体现生态主义的法理基础和承认其他生命物种种群价值的法律价值取向,有必要在各国宪法中增设“应当尊重其他生命物种的生存权利”的原则规定,以弥补传统宪法在保护其他生命物种问题上没有将其与人类共同视为生命共同体的缺憾,以反映环境时代宪法权利生态化的特征。     

Reduced punishment in Israel in the case of murder: bridging the medico-legal gap

The psychiatrist's assessment of criminal responsibility of an accused in court for an act of crime has always been a matter of great difficulty. In 1997, clause 300a was incorporated into the Penal Code of Israel, thereby permitting a more lenient punishment for murder than mandatory life imprisonment. The clause includes the definition of what is meant by "severe mental disorder" and "significantly restricted capacity" by the defendant to understand the criminal nature of his or her act and to refrain from committing it. Usage of the concepts "disorder" and "significantly restricted capacity" in addressing the issue of diminished responsibility of the mentally ill is new to the Israeli legal code. The emergence and evolvement of the above concepts are presented through a historical review of the Israeli encoded law concerning mental illness, analyzed from a psychiatric perspective.