Special report on health care delivery systems. Trends in the integrated delivery of health care and the corporate practice of medicine

The prospects for federal legislation preempting state corporate practice restrictions are unclear. The health care reform bill originally introduced by President Clinton contained a provision that would have preempted "any state law related to the corporate practice of medicine" insofar as it applied to the arrangements between non-fee-for-service health plans and their participating providers. H.R. 3600/S. 1757, 103d Cong., 1st Sess. 1407(b) (1993). Whether and in what form a preemption provision may survive the legislative process and see a Presidential signature remains to be seen. The particular fate of the federal legislation notwithstanding, however, health care executives can nevertheless remain confident that the legal treatment of the "corporate practice" of medicine will continue to be of vital concern as the various forms of health care organizations evolve in the ongoing struggle to deliver quality medicine at affordable prices.     

组织体罪责理念下单位故意的认定:以污染环境罪为例

我国理论通说和司法实践在认定单位犯罪时习惯以自然人的行为和意志为关联和前提,这种个体主义的思路存在诸多缺陷。单位既不能被还原为单个的自然人,也不是自然人的简单集合,组织结构、管理制度、经营方式等客观因素是单位的重要组成部分。单位具有独立的意志和刑事责任。需以整体主义的视角判断组织体罪责,单位犯意仍需区分故意与过失。单位故意是个体在单位内的决策机制或默认规则之作用下最终形成的意志,既有自然人意志的主观色彩,也深受单位客观因素的影响。从整体上把握单位的决策机制、管理制度的政策倾向、管理运营的惯常模式可以帮助认定单位故意。     

Intending to Aid

Courts and commentators are notoriously puzzled about the mens rea standards for complicity. Accomplices intend to aid, but what attitude need they have towards the crimes that they aid? This paper both criticizes extant accounts of the mens rea of complicity and offers a new account. The paper argues that an intention can commit one to an event’s occurrence without committing one to promoting the event, or making it more likely to take place. Under the proposed account of the mens rea of complicity, an accomplice must have an intention that commits him to the crime’s occurrence, but need not commit him to making it more likely that the crime occurs. The paper traces the implications of this view both for several difficult complicity cases, and for ongoing debates among philosophers of action about the necessary and sufficient conditions of joint agency.     

俄罗斯刑法中的罪过论

罪过理论是刑法学最重要的组成部分。罪过问题一直都是世界各国刑法学界研究的热点,中国现行刑法中的罪过理论移植于前苏联,因此与苏俄的罪过理论有着历久弥新的传承关系。从罪过理论的历史沿革、罪过概念、罪过与犯罪构成、罪过与刑事责任根据的关系等宏观视角对俄罗斯刑法中的罪过问题进行全方位的探讨与分析,概括俄罗斯刑法中罪过思想的基本轮廓,可以为中国刑法学界罪过问题的研究提供借鉴。     

推定在犯意认定中的运用——基于英美国家犯意推定的思考

由于意识与意志的主观性,在刑事诉讼中,犯意的证明一直是困扰控方的难题。在缺乏被告人自白的情况下,犯罪的证明完全依赖于推定这一手段。但推定结论的或然性引发了人们关于犯意认定中推定运用可行性的怀疑;犯意推定的证据标准也无法与直接证明的标准一致;推定还可能导致证明责任分配上的争论。英美国家刑事诉讼中对于犯意推定形成了较为稳定的规则,可资借鉴。     

Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness

The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness. It is argued that while the subjective basis of mens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of mens rea and it is that which determines whether the accused is morally blameworthy. Unless this is formally accepted, mens rea will never be restored to its proper normative role; that of determining whether the 'mens was rea'. ¹     

公司法强制性与任意性边界之厘定:一个法理分析框架

为公司法规则的强制性或任意性寻求一个抽象的法理判断标准,已经成为世界各国公司法理学说和公司立法共同面临的基础性命题。我国新《公司法》诸多法条用语的"暧昧"和"含糊",反映了立法者对这一问题的认识不够清晰,对相关公司法规则的属性的设计亦迟疑不决,造成了不少负面影响。尽管公司法对市场的适应性品格经常使其任意性与强制性规则的界限游移不定,但仍然存在一个相对合理的基础性判断标准。立法时应本着公司法的标准合同机制和合同漏洞补充机制之理念,对公司法规则予以类分,并区分初始章程和后续的章程修改,努力探求公司法任意性与强制性规则的法理判断标准,在两类规则的动态均衡中保持公司法的实质正当性。     

论犯罪心理概念的发展对当代美国刑法的影响

从法律发展史的角度,犯罪心理概念在英美法系的发展可以初步概括为三个发展阶段,它的发展与成熟代表了普通法发展和现代化的过程。同时,犯罪心理概念的主导地位的确立直接导致了英美法系主客观相统一原则的形成。当代美国刑法学界对其进行了合理的改造,改造的结果使主客观相统一原则在美国刑事司法实践中更现实,并且致力于平衡公平与效率的关系。因此,主客观相统一原则在英美法系同样扮演着重要角色。     

Two year's experience under Utah's mens rea insanity law

The author examined the records of the seven defendants found not guilty by reason of insanity (NGI) under Utah's mens rea insanity law during the first two years of its operation. In all of the cases the attorneys, judges, and experts seemed unaware of the new law or confused about its meaning. Examination revealed that the findings of insanity were negotiated with either ignorance of or indifference to the mens rea law. Under the mens rea NGI law, the rate of insanity findings for Utah increased.     

South Africa: constitutional court rejects constitutional challenge to law criminalizing prostitution

On 9 October 2002, a majority of South Africa's Constitutional Court dismissed appeals from convictions for prostitution and keeping a brothel, rejecting arguments that the law was unconstitutional. However, the minority decision, endorsed by five of eleven judges, found that the provision that made the sex worker but not the client guilty of a criminal offence was discriminatory and should be struck down.     

Privatisation and Pensions: Some Pitfalls for Women?

This article pursues two themes. The first describes EU pension provision and how this has changed since the early 1980s. The arguments and proposals for further reform by influential organisations such as the World Bank are then examined. In the light of this analysis, the paper argues that while EU pension reform to date has been concerned primarily with adjusting detailed rules, some proposals presently being canvassed point to more radical reform amounting to 'privatisation'. Privatisation is here taken to mean the end of state and employer financing of pension provision for individuals and the substitution of national and company schemes by individual pension and personal savings plans. The second theme of the article is an evaluation of the extent to which existing and possible future pension provision in the EU facilitates or hinders access by people (predominantly women) who are outside the labour market, who are engaged in certain forms of paid work and who are engaged in unpaid caring work. The paper reveals that while access to existing pension schemes is restricted in respect of the first two groups of people, compensatory rules serve to ensure the continued access of those engaged in unpaid caring work. Bringing together the two themes of women's access and pension reform, the paper concludes by arguing that women carers would be disadvantaged were privatisation of pensions in the EU to go ahead.     

The use of neuroscientific evidence in the courtroom by those accused of criminal offenses in England and Wales

This examination of the extent of the use of neuroscientific evidence in England and Wales identifies 204 reported cases in which such evidence has been used by those accused of criminal offenses during the eight-year period from 2005–12. Based on the number of reported cases found, the use of such evidence appears well established with those accused of criminal offenses utilizing such evidence in approximately 1 per cent of cases in the Court of Appeal (Criminal Division). Neuroscientific evidence is used to quash convictions, to lead to convictions for lesser offenses and to lead to reduced sentences. In addition, cases are identified where neuroscientific evidence is used to avoid extradition, to challenge bail conditions and to resist prosecution appeals against unduly lenient sentences. The range of uses identified is wide: including challenging prosecution evidence as to the cause of death or injury, challenging the credibility of witnesses and arguing that those convicted were unfit to plead, lacked mens rea or were entitled to mental condition defenses. The acceptance of such evidence reflects the willingness of the courts in England and Wales to hear novel scientific argument, where it is valid and directly relevant to the issue(s) to be decided. Indeed, in some of the cases the courts expressed an expectation that structural brain scan evidence should have been presented to support the argument being made.     

Representation and Waldron's Objection to Judicial Review

Jeremy Waldron objects to judicial review of legislation onthe ground that it effectively accords the views of a few judges‘superior voting weight’ to those of ordinary citizens.This objection overlooks that representative government doesthe same. This article explores the concept of political representationand argues that delegates may be institutionally bound to heedthe convictions of their constituents, but they are not theirproxies. Rather, they are best viewed as their trustees. Theyought to decide according to what they think is in their constituents’interest. In this sense, a strong element of independent judgmentis involved in their institutional role. So, if we have no problemwith assigning their views superior voting weight, it shouldnot be thought particularly objectionable to give judges thesame power. What is more, once we acknowledge the independencethey enjoy, the question arises whether and by what institutionalmeans we ought to constrain and check their power. The judiciaryis well suited effectively to carry out this supervisory function,because it is immune from political pressure by the legislaturethat would reduce it to its instrument. Hence, in some casesthe institution of judicial review is morally justified.     

The Calculus of Cosponsorship in the U.S. Senate

We investigated why a legislator would be willing to vote “yea” on final passage of a bill but would choose not to cosponsor that bill. We tested a series of hypotheses regarding the cosponsorship decisions of individual senators, using a dataset that includes every major initiative that was introduced and received a floor vote in the Senate between 1975 and 2000. We found that senators are more likely to cosponsor bills when their preferences diverge from the Senate median but are closer to those of the bill's sponsor. Also, senators are more likely to cosponsor bills when they sponsor a higher number of bills overall, when they become more connected with colleagues, and when their constituents increase demand for legislation within particular policy areas. Senators are less likely to cosponsor bills if they received a higher percentage of the general election vote in their most recent election.     

The Responsibility Gap in Corporate Crime

In many cases of criminality within large corporations, senior management does not commit the operative offense—or conspire or assist in it—but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding doctrine—including broadening of the presently narrow “responsible corporate officer” doctrine—so as to authorize such punishment do not fare well under the justificatory demands of criminal law theory. The principal obstacle to such arguments is the large industrial corporation itself, which necessarily entails kinds and degrees of delegation and risk-taking that do not fit well with settled concepts about mens rea and omission liability. Even the most egregious and harmful management failures must be addressed through design and regulation of the corporation rather than imposition of individual criminal liability.     

犯意之于美国刑法中的共谋

从构成美国刑法中犯罪横向典型样态的共谋的发展历史和构成角度出发,围绕共谋当中的犯意规定加以研讨,主要考察了美国刑法实践对于意图以及明知的选择,在此基础上分析了针对随附情状的犯意,并且考察了动机在共谋犯罪当中的相关性的有无。     

The Supreme Court on Compensation for Miscarriages of Justice: Is it better that ten innocents are denied compensation than one guilty person receives it?

The Supreme Court determined that a ‘fresh approach’ was needed in an attempt to bring some clarity to the issue of the eligibility for compensation of those who have had their convictions quashed by the Court of Appeal. The definition that the majority agreed upon was that ‘a new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it’. This article argues that the judgment suffers from a failure to consider the purpose of the legislation; that it is unclear whether the test is normative or historical and that this presents a particular problem in cases relating to the Northern Ireland conflict. The Court focuses on the guilt of the appellant and excludes from its consideration any notion of culpability by the state, which is a cause for concern.     

注册商标的使用及其管理

本文认为 ,现行商标法及其实施细则由于立法认识上的失误及疏忽 ,在规定关于注册商标的使用及其管理方面存在诸多缺陷和不足 ,在实践当中造成不良后果。因此 ,如何规范地界定注册商标使用的内容是真正发挥注册商标的基本功能 ,实现其经济目的的法律保障。在完善注册商标使用的管理制度方面 ,应凸现商标权这一民事权利的私权本质 ,围绕商标权的取得、行使及保护等方面作出科学规定 ,从而完善我国商标法律制度。