侵犯商业秘密罪的实行行为探析

在侵犯商业秘密罪的实行行为中,构成"不正当手段"要求该行为在主观上违背权利人的意愿,客观上具有不正当性;披露的公开化程度不影响该罪的成立;在间接侵犯商业秘密的情况下,其"获取"和"使用"行为与直接侵犯商业秘密情况下的"获取"和"使用"行为存在着差异。     

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。     

Intimate partner violence within a cohort of Pacific mothers living in New Zealand

Maternal reports of intimate partner violence (IPV) were obtained from a cohort of Pacific mothers living in New Zealand. The Conflict Tactics Scale was completed by 1,095 women who had given birth in the past 12 months, and who were married or living with a partner as married. The 12-month prevalence of "victimization" through verbal aggression was 77%, 21% for "minor" physical violence, and 11% for "severe" physical violence. The 12-month prevalence of "perpetration" of verbal aggression against a partner was 90%, 35% for "minor" physical violence, and 19% for "severe" violence towards their partner. The experience of social inequality and acculturation are associated with IPV, albeit differentially across the experience of victimization and perpetration. Factors significantly associated with victimization are ethnicity, maternal education, social marital status and household income. Factors significantly associated with perpetration are ethnicity, cultural alignment, maternal birthplace and alcohol consumption since the birth of the child.     

Narratives of Race and Indigeneity in the Genographic Project

In its quest to sample 100,000 "indigenous and traditional peoples," the Genographic Project deploys five problematic narratives: (1) that "we are all African"; (2) that "genetic science can end racism"; (3) that "indigenous peoples are vanishing"; (4) that "we are all related"; and (5) that Genographic "collaborates" with indigenous peoples. In so doing, Genographic perpetuates much critiqued, yet longstanding notions of race and colonial scientific practice.     

"三个代表":历史唯物主义的与时俱进

“三个代表”重要思想的哲学基础是历史唯物主义,是当代中国共产党人对历史唯物主义的创造性运用和发展。生产力是社会发展最终决定力量,代表先进生产力,是“三个代表”的基础条件、根本力量。发展生产力是“社会主义根本任务”。社会发展是全面的,在注重物质文明建设、坚持生产力标准的同时,也要注重精神文明建设。中国特色的社会主义,需要先进的生产力,也需要先进的文化。人民群众既是先进生产力和先进文化的创造者,又是其享有者。实现最广大人民群众根本利益是发展先进生产力和先进文化的目的和归宿。“三个代表”是一个统一整体,相互联系、相互促进。“三个代表”是历史唯物主义的与时俱进。     

Psychopathologic manifestations of oral administration of endemic nightshade plants]

Psychopathological findings in two cases of oral poisoning with toxins of "Datura stramonium" (thorn apple) and "Hyoscyamus niger" (insane roof) are reported. Toxicological aspects of voluntary ingestion are discussed as well as the forensic importance of criminal poisoning.     

The legal basis for ethical withholding and withdrawing of life-sustaining medical treatment in children

Withholding and withdrawing life-sustaining medical treatment are common in paediatric practice, especially in intensive care units. However, not all clinicians apparently adhere to principles in ethical guidelines or to the principles which are to be found in judgments from common law cases arising when doctors and parents dispute treatment. This article examines selected ethical guidelines and compares them to judgments in leading cases. The rationale to forgo treatment is usually the child's "best interests" in both clinical practice guidelines and legal cases but in the former "best interests" may remain ill defined. Although "best interests" must essentially pertain to the individual child, the interests of others are not irrelevant. In legal cases "best interests" of the child are defined in terms such as "burden versus benefit", "futility", "indignity", "intolerability", "prolonging death rather than saving life" and "quality of life". These or like terms should form the basis of ethical decisions in discussions with parents when contemplating withholding or withdrawing life-sustaining treatment.     

Privacy Act of 1974; report of new system--HCFA. Notice of new system of records

In accordance with the requirements of the Privacy Act of 1974, we are proposing to establish a new system of records, called the "National Provider System (NPS)," HHS/HCFA/OIS No. 09-70-0008. We have provided background information about the proposed system in the "Supplementary Information" section below. Both institutional (e.g., hospitals, skilled nursing facilitaties) and individually identifiable (e.g., physicians and other practitioners) providers are included in the NPS database. The institutional providers' data are covered by section 1106 of the Social Security Act and the Freedom of Information Act, while the individually identifiable providers' data are also covered by the Privacy Act of 1974. Although the Privacy Act requires only that the "routine uses" portion of the system be published for comment, HCFA invites comments on all portions of this notice. See "Effective Dates" for comment period.     

The Specter of "Antiglobalism"

Another specter is wandering the world—"antiglobalism." The sacred persecution of the specter has united liberals and fascists, adherents of worldwide globalization and diehard nationalists, anticommunists and orthodox Stalinists. When "antiglobalists" are mentioned, even reputable political scientists have no aversion to slander and misinformation. The ordinary person anticipates new "tricks" from the "antiglobalists" with fear, but also with curiosity.     

Forensic medical expert evaluation of lethal poisoning with narcotics

Morphological manifestations of lethal narcotic poisoning are analyzed on the basis of results presented in "Acts of Medical Examination of Corpse" and "Expert Conclusions" on 352 cases with lethal narcotic poisoning, suspected (with good grounds) poisoning, and combined poisoning with narcotics and other agents. Causes of failure to detect narcotics in forensic chemical analysis of biological material from the corpse are enumerated.     

Privacy Act of 1974; report of new system--HCFA. Notice of new system of records

In accordance with the requirements of the Privacy Act of 1974, we are proposing to establish a new system of records, "Evaluation of the Medicare Case Management Demonstration" No. 09-07-0061 HHS/HCFA/ORD. We have provided background information about the proposed system in the "Supplementary Information" section below. Although the Privacy Act requires that only the "routine uses" portion of the systems be published for comment, HCFA invites comments on all portions of this notice. See "Dates" section for comment period.     

Privacy Act of 1974; report of new systems of records--HCFA. Notice of new system of records

In accordance with the requirements of the Privacy Act of 1974, we are proposing to establish a new system of records, "HCFA Medicare Mortality Predictor Data File, "HHS/HCFA/ORD No. 09-70-0047. We have provided background information about the proposed system in the "Supplementary Information" section below. Although the Privacy Act requires only that the "routine uses" portion of the system be published for comment, HCFA invites comments on all portions of this notice.     

Crossroads and Pitfalls of the Transition Period

The theme of the crisis of Russian society continues to occupy a leading place in our publications. However, the economic woes clearly felt by all have meant that discussions have been predominantly, if not exclusively, concerned with the economic component of the crisis. The reasons for the failures in this sphere are often sought in subjective weaknesses, in our habitual revealing of the "sources of evil," whether these be specific persons (Yeltsin and Gaidar, Chernomyrdin and Zaveriukha, Khasbulatov and Rutskoi), entire groups (the "nomenklatura" the "red—browns," the "agrarians," the "democrats," the "monetarists"), or external forces ("imperialists," "freemasons"), and so on. Accordingly, the solutions to the crisis are also quite simple: one need only replace an "incorrect" program with a "correct" one, remove the "sources of evil" and "agents of influence" from power, then all the problems will resolve themselves (by spring or fall, in a year or two, depending directly on the temperament of the particular healer of society and inversely on the degree to which he is informed).     

The structure of basic human rights

This paper offers a theory of the structure of basic human rights which is both compatible with and clarificatory of the traditional conception of such rights. A central contention of the theory is that basic rights are structurally different from other kinds of moral rights, such as special rights, because of differences both in the way in which basic rights have content and the model on which basic rights are correlative with duties. This contention is exploited to develop and defend the central thesis of the theory, namely that basic human rights are bundles of mutually held active rights enjoyed by persons in virtue of the specifiable moral relationships they bear to each other.     

我国民法调整对象主流学说的重新审视

"平等说"和"商品关系说"是我国民法调整对象的主流学说,二者都是继受前苏联民法调整对象学说的结果。我国的"商品关系说"遵循了前苏联法的逻辑,即从价值规律出发来阐述民法存在的必要性和当事人的平等。"平等说"与"商品关系说"具有内在一致性。在否定民法是私法的历史条件下采纳这两种学说,是民法学界为在实质上为民法赢得地位,又能不至于引起思想大动荡的一种智慧之举。"商品关系说"固然具有一定的局限性和片面性,但是,从历史合理性和人的需求角度来评价该学说,学术批评才可能具有"客观性"和"历史性"。     

刑法“有利溯及之例外”条款的 合宪性限定解释——基于牛玉强案的思考

《刑法》第12条第2款可称作"有利溯及之例外"条款,近年来广受关注的牛玉强案就涉及这一条款。对于该条款的解释,刑法学上的观点大致可类型化为"完全适用说"、"选择适用说"以及"完全不适用说"。"选择适用说"与"完全不适用说"意在排除该条款在某些个案中的适用,但两种学说都面临一系列学理上的难题。如果引入宪法层面的判断,则可对该条款进行合宪性限定解释。其路径有二:一是以限制基本权利的比例原则对该条款的适用范围加以限缩;二是将罪刑法定原则解释为具备宪法位阶的原则,继而将一部分有罪判决排除出该条款的适用范围。     

Privacy Act of 1974; report of new system--HCFA. Notice of new system of records

In accordance with the requirements of the Privacy Act of 1974, we are proposing to establish a new system of records, "Evaluation of the Medicare SELECT program, HHS/HCFA/ORD No. 09-70-0058." We have provided background information about the proposed system in the "SUPPLEMENTARY INFORMATION" section below. Although the Privacy Act requires only that the "Routine Uses" portion of the system be published for comment, HCFA invites comments on all portions of this notice. See "DATES" section for comment period.     

The Direct and Cross-Examination of Complainants and Defendants in Rape Trials: A Quantitative Analysis of Question Type

This paper is a post-hoc examination of the questioning used in six rape trials. Questions asked in the evidence-in-chief and cross-examination of six complainants and five defendants were coded into different categories. The categories comprised "open", "closed", "leading", "heavily-leading" and "yes/no" questions; questions that are known to increasingly constrain witness responses. Additionally, the frequency of "multiple questions", and questions with "negatives" and "double negatives" were recorded; questions that witnesses have difficulty understanding. Broadly speaking, results showed that questions in both evidence-in-chief and cross-examination were of a constraining nature and allowed witnesses little opportunity to provide complete accounts of alleged events, particularly during cross-examination. Multiple questions were frequent although negatives were comparatively rare, and double negatives did not occur. Similar forms of questioning were used for complainants as for defendants, although more questions were asked of complainants than defendants in cross-examination. The results are discussed in terms of the adverse influence of these questioning strategies on the completeness and accuracy of witnesses' responses, and the similarity in "combativeness" of lawyers in their examination of complainants and defendants.     

Brief for 885 law professors in support of maintaining adherence to the Roe decision

This brief opposes the overturn of "Roe v. Wade" and resists weakening "Roe's central holding" that would allow states to overturn legal abortion. The brief was written for 885 law professors. "Roe" was not a "constitutional aberration," or "an exercise of raw, judicial power." Some members of the Supreme Court seem to think that the state has "an overriding interest" in protecting fetal life. Some Court members have questioned "Roe's" trimester framework. A person's decision to abort should be done privately. If women are not free to choose abortion, they will not have equality. There is an absence of "express rights of privacy and procreational freedom" in the Constitution. "Roe" was 1 instance of the Court's recognition of constitutional rights that are not named explicitly. Historical materials are drawn on to show the link between trends in society and the "judicial recognition of unenumerated rights." The most serious questions about "Roe" deal with its trimester framework. Justice Blackmun's majority opinion said that the 1st trimester of pregnancy was personal. "Roe" said that abortions created a medical risk at the beginning of the 2nd trimester. Therefore, the government was more interested in the health of the mother at that time. The state could then regulate abortion "in ways that are reasonable related to maternal health." The start of the 3rd trimester was when the fetus was viable. The right of a woman to end her pregnancy "offends powerful moral forces." Some of "Roe's" critics had their scientific facts wrong. Medical authorities think Justice O'Connor is mistaken when she says that "Roe" is "on a collision course with itself." The 23rd to 24th week of pregnancies where the fetal organs can "sustain life outside the womb." This has not changed since "Roe" was decided in 1973, nor is it likely to in the future. Some "amici" believe that the state can never have an interest in the fetus. The state can not have an interest in the fetus distinct from the woman who will give birth to it. During previability, restricting a woman's procreational rights would not be scientifically supportable. The state does have an interest in "upholding the value of human life." "Roe" is "within the mainstream" of constitutional jurisprudence and should be reaffirmed.     

宽严相济刑事政策与和谐社会

宽严相济刑事政策是我国刑事政策的新发展,同时也是对实行20多年的"严打"政策的反思和纠正.宽严相济刑事政策与和谐社都"以人为本",因而内在地联系在一起.构建和谐社会需要实行宽严相济刑事政策,因为它能满足和谐社会化解社会矛盾的需要、节约社会资源和刑事司法资源的需要;宽严相济刑事政策能促进和谐社会构建,因为它能有效地维护社会稳定,促进社会和谐,协调社会利益.所以,在构建和谐社会过程中,必须采取有效措施认真贯彻宽严相济刑事政策.