民事证据随时提出、同时提出抑或适时提出——兼评《中华人民共和国民事诉讼法修正案(草案)》第65条

在法定顺序主义下,主张已经固定,有完善系统的审前程序,实行证据同时提出主义和逾期失权制度则有其合理基础。在自由顺序主义中,无审前程序固定主张和争点,则只能实行证据随时提出主义,但证据随时提出主义无法集中审理和诉讼拖延的弊端决定着其让位于增设审前程序后的证据适时提出主义。不像美国的证据开示制度,我国民事诉讼法不能随意证据失权,只能实行相对温和的证据适时提出主义,但也需相应完善审前程序。     

为什么不能将性贿赂犯罪化?

近年来有不少学者和人大代表仅从性贿赂的危害性角度提议性贿赂入罪,是对刑事立法规律的不理解所导致的。性贿赂立法在国际反腐败公约中没有要求,在国外立法中没有先例,在我国不能将性贿赂入罪,因为将性贿赂入罪会因为认定上的困难而导致司法上的混乱。不将性贿赂犯罪化,但可以通过其他方式监督性贿赂、防止官员腐败。     

Teaching restorative justice: developing a restorative andragogy for face-to-face,online and hybrid course modalities

Teaching restorative justice in an academic setting is different from teaching almost any other academic course. Courses taught in the context of academic criminal justice programs tend to reinforce the structural inequalities in society, replicated and reinforced by instructor driven classroom experiences. In contrast, effective teaching of restorative justice should emulate the values of principles of restorative justice in the organization and management of the course. Teachers of restorative justice must ‘walk the talk’ and apply restorative principles and values to the design and delivery of the course itself. A conceptual framework for ‘restorative andragogy’ is developed that blends principles and values of adult learning with those of restorative justice. Four principles of this approach are identified and applied across three instructional modalities – face-to-face, online only, and hybrid courses. This approach provides a theoretically grounded model for effective teaching of restorative justice courses.     

From research integrity to research relevance to advance forensic science

Research is essential for any field to move forward. It allows us to expand our body of knowledge and enables any discipline to advance its application and meet its overall purpose. This is of course also essential for forensic science, a fundamentally research-based discipline, to develop and validate detection or examination methods and gather data and establish frameworks to understand forensic traces and their value to relevant stakeholders, such as law enforcement and the courts.     

You're OK,I'm OK: The Self-Presentation of Affective Reactions to Deprivation

Two experiments compared public and private reports of affective reactions to deprivation. In Experiment 1, participants completed a questionnaire concerning their resentment about poor marks in a course; they had previously been led to believe that another participant was either angry or not angry about his/her marks. Participants' ratings of resentment were more affected by the other participant's alleged emotions in a public than in a private reporting condition. In Experiment 2, employed adults completed a questionnaire concerning their affective reactions to the lack of day care facilities available for working parents; they had previously been led to believe that the experimenter was either upset or not upset about the facilities. When respondents' answers were public, their ratings of resentment were affected by the experimenter's alleged emotions, whereas under conditions of private responding, there was no effect of the experimenter's alleged emotions. Taken together, these experiments provide initial evidence that self-presentation motives can influence reports of affective reactions to deprivation. In particular, our data show that self-presentation can induce a matching strategy whereby public expressions of resentment mirror the expressions of salient others. Two experiments compared public and private reports of affective reactions to deprivation. In Experiment 1, participants completed a questionnaire concerning their resentment about poor marks in a course; they had previously been led to believe that another participant was either angry or not angry about his/her marks. Participants' ratings of resentment were more affected by the other participant's alleged emotions in a public than in a private reporting condition. In Experiment 2, employed adults completed a questionnaire concerning their affective reactions to the lack of day care facilities available for working parents; they had previously been led to believe that the experimenter was either upset or not upset about the facilities. When respondents' answers were public, their ratings of resentment were affected by the experimenter's alleged emotions, whereas under conditions of private responding, there was no effect of the experimenter's alleged emotions. Taken together, these experiments provide initial evidence that self-presentation motives can influence reports of affective reactions to deprivation. In particular, our data show that self-presentation can induce a matching strategy whereby public expressions of resentment mirror the expressions of salient others.     

Law for Life: Preliminary Thoughts

Law for Life is a training programme in contract law, unfair dismissal law and the English court system. It is aimed specifically at employees who in the course of their work are required to underdstand and apply the law regardless of whether or not they have received any formal legal training. One of the primary reasons for developing Law of Life was to provide training to the SME sector. Very often such companies do not have any in-house legal advisors and research has estimated that 70% of them do not provide any training for their employees in any aspect of their work. This suggests that smaller companies are relying on informally training, and even untrained personnel, in areas requiring legal expertise. Research carried out in the Luton area had indicated that SMEs tended to adopt a pragmatic approach to legal matters, addressing them as and when they arose. Law for Life was developed as a direct response to these findings. Recognizing that the SME sector is highly competitive, operates at minimum staffing levels and that SMEs are not generally in a position to release employees for staff training Law for Life had to be tailored to suit the needs of the SME sector. This meant that in order for Law for Life to be accessible to SME employees it had to be offered as a distance-learning package.     

Arbitration Effect

Arbitration is changing the United States justice system. Critics argue that arbitration leads to claim suppression. Proponents argue that, compared with courts, arbitration is cheaper and less formal. These claims have not been empirically tested. In particular, whether and how arbitration impacts individuals’ decision to sue remains an open inquiry. This article for the first time shows, in a series of experiments, the impact of arbitration agreements on individuals' decisions to sue. This article calls it the “arbitration effect.” First, we test whether the arbitration effect exists; that is, if arbitration agreements negatively impact individuals' decision to sue. Second, we experimentally test individuals' decisions to opt out of arbitration agreements. Lastly, we assess whether any type of information can “cure” the arbitration effect. The results establish that individuals are less likely to sue in arbitration as opposed to court, hence the arbitration effect. Such an effect, however, does not exist at the contracting stage, meaning that individuals do not shun arbitration when given the option. Further, none of the fundamental attributes of arbitration, as touted by the U.S. Supreme Court, nor win-rates and class actions mitigate the arbitration effect. Equally, informational nudges do not reduce the effect, and individuals do not ascribe negative attributes to firms forcing mandatory arbitration. For decades, courts and lawmakers grappled with issues related to arbitration. The article provides much-needed data on arbitration. Findings cast serious doubts on the ongoing efforts—market-based, judicial, or regulatory—aiming to change the arbitration course.     

Interventions for Juvenile Offenders: A Serendipitous Journey

This is a story of a concatenation of largely unplanned and unexpected events that propelled a line of research on the effectiveness of interventions for juvenile offenders along a trajectory that is more coherent in retrospect than at the time of any of those events. In the course of that serendipitous journey, insights were gained on the limitations of individual studies, the value of systematic analysis of a body of research, and the challenges of transporting evidence into evidence‐based practice.     

Coping with Electronic Data Discovery Issues

This article provides an overview of the steps a company should take if electronic discovery is requested from it during the course of litigation. Either by seeking a protective order or by inducing a motion to compel by objecting to the discovery requests, a ruling should be obtained from the court as to the parameters and limits of the requested discovery and who bears the cost of retrieving and producing the electronic data. If production is ordered by the court, the producing party must ensure through the use of formal review measures that any privileges protecting the data are not waived. While severe sanctions may be imposed on a party who destroys electronic evidence after litigation is initiated or when it is reasonably likely that litigation will ensue, a company may prevent a broad-scale, expensive production of electronic evidence by installing prior to any litigation a system of routine organization and disposal of non-essential electronic data.     

The viability and possible applications of high resolution mark replicator casting compound in document examination.

Mark replicator casting compounds are commonly associated with recovering toolmark detail. A series of experiments was designed to identify the possible applications, and assess the overall viability, of using mark replicator compound to record indentations on questioned documents. The trials included testing the effect of Isomark High Resolution Mark Replicator on different paper-based substrate types, and observing in particular, any damage that it may cause. The experiments also tested the effect that the mark replicator has on subsequent fingerprinting techniques. It was found that the mark replicator successfully recorded indentations on paper and card surfaces. In some cases, the mark replicator caused staining on some of the surfaces and had a negative effect on the quality of fingerprints subsequently developed.     

Estimation of the time since death

The main principle of the determination of the time since death is the calculation of a measurable date along a time-dependent curve back to the start point. Characteristics of the curve (e.g. the slope) and the start point are influenced by internal and external, antemortem and postmortem conditions. These influencing factors have to be taken into consideration quantitatively in order to improve the precision of death time estimation. It does not make any sense to study the postmortem time course of any analyte without considering influencing factors and giving statistical parameters of the variability. Comparison of different methods requires an investigation of the same postmortem interval. For practical purposes, it must be concluded that the amount of literature on estimating the time since death has a reverse correlation with its importance in practice.     

论西汉汲黯的法律思想

汲黯作为西汉重臣,尽管未留著作于后世,但从他的“行”进行史料考察和分析,可以发现他的“无为而治”、“重民”、“社稷为重”等法律思想,具有重要的价值。     

DTC Advertising Harms Patients and Should Be Tightly Regulated

Like all interventions in health care, direct-to-consumer (DTC) advertising should be evaluated by comparing its risks to its benefits, in the context of the available or potentially available alternatives. The objective, of course, is to realize any unique benefits while minimizing the risks. On balance, the adverse effects of DTC advertising outweigh the still-unde-monstrated benefits of the advertising.     

On the General's Bass Notes

Of all the consequences of the collapse of the Soviet empire, the most unpleasant of course is the disintegration of the army. In literally an instant, it became superfluous as regards the execution of the only function of any army, namely, defending the country, for the simple reason that the state that had created it had sunk into oblivion. Demoralized, deprived of the very purpose of its existence, and incapable even of safeguarding the weapons entrusted to it, it is steadily turning into a free arsenal, where localists and bandit formations, pure and simple, are helping themselves.     

AIDS and infection control in forensic investigation

Infection control in the workplace is becoming an increasingly important issue, not only for health care workers, but also for any workers who could potentially be exposed to infectious material. We discuss the nature, modes of transmission, and infectivity of important infectious agents likely to be encountered in the course of forensic investigations. We provide principles and guidelines for appropriate procedures and practices to be followed in a program of infection control.     

Rules, Principles, Algorithms and the Description of Legal Systems

Abstract .
Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the "model of rules," Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.     

Toleration and Recognition

The author asks: Is there a case for redefining toleration as the recognition of excluded identities? He is inclined to answer no. Liberal democratic states, should of course recognise disfavoured groups by registering the normality of their members and the justice of their claims but must resist recognition in any stronger sense. Appropriate recognition consists in confronting the live contemporary issues of exclusion and of ethnic and national injustice by compensatory policies and constitutional innovations.     

Liability in desensitization accidents

Deaths that occur during the course of desensitization treatment are regularly analyzed in penal or civil investigations. Abnormal activity of an allergenic extract may also be the cause of the incident, but it is difficult to prove. Today the burden of proof is being reversing in favor of the patient because the legal requirements for drug producers are more specific. Liability to injury and liability of the product are discussed with regard to the legal situation in the Federal Republic of Germany and in Austria. In any case, there is a considerable gray area regarding liability for incidents during desensitization treatment. Because safer medicines are required today, the author is proposing that the duty to notify be intensified by the requirement that mild systemic reactions also be reported to a central registry.     

商业秘密保护中的价值冲突与权利冲突研究

在商业秘密法律保护中存在着一系列的价值冲突与权利冲突。法律对任何权利的保护都应是有限度的,否则将容易造成权利人对权利的滥用。因此,法律对商业秘密的保护应有一定的限制。在对商业秘密保护中的价值冲突、权利冲突进行分析的基础上,借助法经济学和法理学的分析方法探讨冲突的解决问题。在坚持追求价值最大化的前提下,尊重社会主导价值观和社会总体利益,贯彻共同抑制标准和效率优先、兼顾公平原则来寻找权利保护的临界点和平衡点,从而解决冲突。     

Early postmortem course of washerwoman's skin of the fingers

Studies were carried out systematically in both corpses and the hands of corpses in order to find out when " washerwoman 's skin" begins. The temperatures ranged between 10 degrees and 18 degrees C and the time of the experiments did not exceed 300 min. The initial formation of washerwoman 's skin could be observed after 20-30 min at the fingertips and after 50-60 min in the entire finger. The longest intervals observed were 100 or 150 min, respectively. These long intervals were interpreted as being exceptions from the norm, probably due to either extraordinarily heavy strips of fat on the fingers or abnormally hard skin on the hands. The course of washerwoman 's skin obviously depends on the water temperature, and afterwards it disappears rather slowly--even after a short immersion--in the open air. We will carry out additional experiments in the future.