从人权保护的视角考察宣告死亡制度

统摄现代法治社会的灵魂是人权,为失踪人设置的宣告死亡制度与人权保护紧密相关,人权的绝对性使宣告死亡的设置缺乏依据,而人权的相对性又使宣告死亡成为现代法治社会的良好制度,严格宣告死亡的条件,合理规定死亡的法律后果,使宣告死亡与人权保护相协调。     

Can we handle the truth? Legal fictions in the determination of death

Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. People can be maintained on life-support even after permanently losing the ability to breathe spontaneously and remaining unconscious and unable to interact meaningfully with others. In part because this group of people could help fulfill the growing need for organ donation, there has been a great deal of pressure on the way we determine death. The determination of death has been modified from the old way of understanding death as occurring when a person stops breathing, her heart stops beating, and she is cold to the touch. Today, physicians determine death by relying on a diagnosis of total brain failure or by waiting a short while after circulation stops. Evidence has emerged that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from our biological and common-sense understandings of death. We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. However, the considerable debate over the determination of death in the medical and scientific literature has not informed the public of the fact that our current determinations of death do not adequately establish that a person has died. It seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution of acknowledging the legal fictions involved in determining death. This move in the direction of greater transparency may someday result in allowing us to face squarely these issues and effect the legal changes necessary to permit ethically appropriate vital organ transplantation. Finally, this paper also provides the beginnings of a taxonomy of legal fictions, concluding that a more systematic theoretical treatment of legal fictions is warranted to understand their advantages and disadvantages across a variety of legal domains.     

Death penalty in China: The law and the practice

China is a nation that carries out the death penalty with a broad scope in its transition to a market economy. The present study described and analyzed the legal concept and practice of the death penalty in China in a comparative context. It presented an overview of the Chinese legal tradition of the death penalty, the legal development of the death penalty since the Chinese Communists took power, and the current practice of the death penalty in China. It represented an attempt to offer a research-based understanding of the capital punishment in a nation that was experiencing significant change and transformation since the early 1980s.     

死刑复核法律监督制度研究

检察机关对死刑复核实行法律监督,符合人大制度关于权力监督制约的原理,不影响最高人民法院应有的诉讼地位和独立性、权威性,体现了检察官客观性义务的要求,具有基本法律依据。开展死刑复核法律监督应遵循严格限制并减少死刑、切实保障人权、维护公共利益、公平、及时、突出重点等原则。检察机关在死刑复核中的诉讼地位不是公诉人,而是法律监督者。检察机关可以通过备案审查、受理申诉控告等启动监督程序。监督的主要方式包括提出案件意见、派员列席审委会会议、派员出席法庭或听审活动、抗诉、纠正违法以及立案侦查审判人员职务犯罪等。     

检察机关对死刑复核程序法律监督的实务设计

现行死刑复核程序,具有不完整性和"封闭"性特征,丧失了司法权的特性,且缺乏外部监督与制约,极大地减少了法官发现冤案、错案的可能性,不利于保证死刑案件的实体公正。检察机关作为国家的法律监督机关,对死刑复核程序进行法律监督,具有法律依据、政策依据和法律文化传统依据,也是保障人权和保证司法公正的客观要求,是满足广大人民群众对死刑复核工作的新期待和维护我国国际形象的需要。可以针对高级人民法院适用的死刑复核程序和最高人民法院适用的死刑复核程序,设置相应的实务运作程序,实现检察机关对死刑复核的过程和结果的法律监督,及时发现和纠正违法的复核行为和错误的复核裁判,保障死刑的准确适用。     

“I'll Make Them Shoot Me”: Accounts of Death Row Prisoners Advocating for Execution

About 11% of death‐sentenced prisoners executed in the United States hastened executions by abandoning their appeals. How do these prisoners persuade courts to allow them to abandon their appeals? Further, how do legal structures and processes organize these explanations, and what do they conceal? An analysis of Texas cases suggests that prisoners marshal explanations for their desires to hasten execution that echo prevailing cultural beliefs about punishment and the death penalty. The coherence of these accounts is amplified by a non‐adversarial, unreliable legal process. This article contributes to our understanding of legal narratives, and expands their analysis to include not only hegemonic stories and legal rules, but also the legal process that generates them.     

致体质特异人死亡的轻微暴力行为的法律定性

目前理论界关于致体质特异人死亡的轻微暴力行为的定性问题的三种主要观点——意外事件说、故意伤害致人死亡说和过失致人死亡说都有失偏颇。准确给致体质特异人死亡的轻微暴力行为进行法律定性,应从其行为本身是否属轻微暴力,及对不同行为类型的特征具体分析行为的性质。明知他人体质特异致其死亡的轻微暴力行为,应区分情况以故意杀人罪或过失致人死亡罪定性;而不明知他人体质特异致其死亡的轻微暴力行为则应归为意外事件。     

Death certificates in Germany, England, The Netherlands, Belgium and the USA

Every country has its own legal system regarding post mortem examinations and death certificates. The authorities want to know the cause and the manner of death of their citizens and especially whether someone is responsible for the death of someone else. In this article a comparison is made between the legal regulations in the Netherlands, Belgium, Germany, England and the USA. Specific attention is given to the following aspects: which official performs the post mortem exam, what is the role of the attending physician by issuing the death certificate and how is the privacy of the deceased protected.     

企业法人被渎职的四大攻防术

＂企业法人从生到死,都被那双无形的鹰眼时刻的注视、关切着,形影不离。因此,法人被渎职后选择借助公力救济的,应针对不同情态做出具体的选择＂     

Medical and legal problems of multiple death certificates]

In cases of unnatural death and unclear manner of death the police has according to section 159 StPO to inform the prosecution. The prosecutor has to decide how the case shall be handled. Independent inquiries or even independent handling of the case by the police are not scheduled. For legal purposes it is not possible to induce another doctor to issue another death certificate with the manner of death certified as natural.     

死刑复核程序改革与检察机关的介入权

我国死刑复核程序应当进行司法化、诉讼化改革。检察机关作为国家的法律监督机关,在死刑案件的刑事诉讼中,既承担着公诉的职责,也承担着审判监督的职责,应当有权介入作为死刑案件最后一道关口的复核程序。     

宝鸡市358例法医送检器官的组织病理学分析

目的 分析法医尸体检验后送检器官的病理学特征,总结此类案件的特点.方法 对宝鸡市法医送检358例尸体解剖器官标本进行常规检查并进行组织病理学诊断. 结果 358例中以青壮年男性为主,死亡原因主要为创伤、猝死、中毒.组织学能明确死亡原因250例,无典型组织学病变101例,组织自溶腐败7例.病理诊断以心血管疾病为主,其次为呼吸、神经、消化系统疾病. 结论 法医解剖具有专业特点,与病理解剖不尽相同.组织病理学检验进行死亡原因诊断时,应积极与法医沟通,以充分掌握案情、死亡经过及特定的法医病理学特征.     

对生前预嘱相关问题的探讨

生前预嘱是指人在意识清楚时签署一份文书来事先表达出自己在生命末期的医疗意愿。本文针对生前预嘱的理解和适用中存在的相关问题作出探讨。本文以尊严死在我国的提出以及生前预嘱在我国的推广现状为基础,从法律的视角分析了生前预嘱的合法性和必要要件,并阐明了在目前的法律框架下生前预嘱还不是生效的法律文件,生前预嘱的落实还需要亲属的同意。本文借鉴其他国家和地区对生前预嘱的立法状况并结合我国的实际,提出了对于放弃治疗和尊严死的理解,以及针对医疗实践中放弃治疗的困惑提出了对放弃治疗应该严格遵循的原则。     

Investigation of drug-related deaths. An overview

Drug-related deaths encompass fatal overdoses, the medical derangements from chronic consumption, and violent death from the alteration of normal behavioral patterns. Determining the extent to which a drug contributed to a death necessitates correlation of all aspects of the death investigation; autopsy and toxicologic findings must be interpreted in the light of antecedent events, medical and social history, and thorough scene investigation. The approach to the medicolegal investigation of drug-related deaths is discussed along with some legal ramifications and certain potential problems of death certification.     

An inmate’s right to die: legal and ethical considerations in death row volunteering

There is a considerable body of literature about the death penalty across a variety of disciplines. However, a newer body of literature has emerged examining the phenomenon of elected executions, also known as death row volunteering. To date, 138 (nearly 11%) of the 1300 death row executions have come from volunteers. This issue has been particularly controversial due to a number of legal and ethical considerations that have been raised by the scholarly, legal, and public communities. Such issues include a capital defendant’s competency to volunteer; ethical and moral dilemmas for capital defense attorneys, the states, and medical and mental health professionals; whether death row volunteering equates to ‘state-assisted suicide’; and finally, how these considerations impact the public’s support for capital punishment. This paper reviews the existing literature pertaining to death row volunteering through the lenses of these various considerations. Recommendations for future research in this area are also offered.     

Disclosure of medical data to relatives after the patient's death: recent legal developments with respect to relatives' entitlements in the Netherlands

In the Netherlands the physician is still bound to professional confidentiality after the patient's death. However, in the legal doctrine and in case law some exceptions have been recognized, especially for circumstances where the relatives have a legitimate interest in the inspection of medical records of the deceased. Today developments as regards the Dutch proposal to new legislation on patients' rights, notably the proposed insertion of a provision stipulating the conditions under which the relatives have a right of access to medical records of the deceased, give cause for renewed consideration of this issue related to legal protection after death. This article explores whether the proposed provision corresponds to the prevailing principles regarding disclosure of medical data after death. It is concluded that there is a need to reconsider the provision's wording or to adhere to self-regulation of the Royal Dutch Medical Association in order to strike an appropriate balance between the various interests concerned.     

我国引渡外逃经济罪犯的法律障碍和对策——以赖昌星遣返为视角

2006年6月,赖昌星遣返再次遇阻,此案折射出我国引渡外逃经济罪犯存在三大主要法律障碍:引渡条约的缺位;死刑问题;司法公正问题。有鉴于此,我国应采取相应的法律对策:扩展与外国的双边引渡条约关系;废除经济犯罪适用死刑;加强司法改革,树立司法公正的国际形象。     

刍论中国脑死亡立法

＂脑死亡＂立法属于科技含量高,人权及伦理学混杂的法律进程。全文对脑死亡立法作了理论基础分析,对脑死亡立法的必要性,目前面临的主要问题作了探讨,提出对脑死亡立法的建议。     

Moving beyond Ford,Atkins, and Roper: jurors' attitudes toward the execution of the elderly and the physically disabled

Abstract

The central purpose of the current study is to correlate level of support for the death penalty, death-qualification status, attitudes toward the death penalty (ATDP), legal authoritarianism (RLAQ (Revised Legal Attitudes Questionnaire)), and demographic indices with attitudes toward the execution of the elderly and the physically disabled. Two hundred and fifty residents of the 12th Judicial Circuit in Florida completed a booklet that contained the following: (1) one question that measured their level of support for the death penalty; (2) one question that categorized their death-qualification status; (3) the ATDP; (4) the RLAQ; (5) 20 questions that measured participants' attitudes toward the execution of the elderly and the physically disabled (EEPD); and (6) standard demographic questions. Results indicated that level of support for the death penalty, death-qualification status, attitudes toward the death penalty, legal authoritarianism, and demographic indices were significantly related to four components of the EEPD. Legal implications and applications are discussed.