宪法权威的生成机制辨析

宪法权威的大小受制于社会发育的情况,只有在市民社会发育良好,并且能同政治国家形成有力制衡的条件下,宪法权威才有可能逐步形成。宪法实施的积极的、主要的、基本的方式是立法机关的立法,在违宪审查机制的作用下,确保立法机关的立法符合宪法精神和原则,保障宪法实施的内在统一;在相关立法不足的情况下,通过宪法司法化,直接援引宪法规范维护宪法主体的宪法权利,乃是宪法实施的一种辅助方式。在宪政秩序不健全的社会,关注各种宪政事件,对于实施宪法,维护宪法权威具有重要意义。     

论船舶所有人责任限制

国际海上运输与其它运输方式相比,具有较大的危险性,且海上危险具有全损性,一旦发生海上事故,实行一般民法损害赔偿的“所受损害及所失利益”的“完全赔偿”方法,不利于船舶所有人的资本保护。因此,为了适应国家发展需要,鼓励和扶持航海事业,各国海商立法大都对船舶所有人责任加以限制。但是,鉴于船舶所有人责任限制政策影响索赔人权益甚巨,国际公约及各国立法趋向对船舶所有人的责任限制力求合理与公平,即船舶所有人责任制度已由纯粹保护船舶所有人的传统做法,逐渐转型为兼顾社会利益与债权人利益的做法。     

论服务型政府的法治理念与制度构建

自20世纪80年代以来,我国社会进步的进程始终伴随着经济、社会发展与政府治理方式的发展。在政府治理方式的发展进程中,政府职能转化则是核心步骤。在政府职能转化目标上,党的十七大明确提出要建构服务型政府。构建服务型政府,既是对我国政府改革和发展方向的重新定位,也是建设社会主义和谐社会的内在要求;构建服务型政府的目标,既是构建适应社会主义市场经济体制的政府职能与行政管理体制的需要,也是落实科学发展观的需要。从政府规制与服务型政府的契合出发,服务型政府应当有相应的法治理念,呼唤开放的、公开的治理模式和公众参与制度。     

物权变动的公示主义

物权变动涉及财产的涌流,关乎一国的交易秩序,因而公示极其重要。公示将物权的实际状态表彰于外,为社会认识。公示主义的中心理念在于交易便捷与安全的社会价值,通过对交易人信赖的维护,向社会交易界提供统一的、稳定的、普遍信服的法律基础。     

Predictors of length of stay in forensic psychiatry: The influence of perceived risk of violence

This study describes the prevalence of adverse events and length of stay in forensic psychiatric patients with and without a restriction order. Detailed clinical and administrative information from medical records and written court decisions was gathered retrospectively from admission until discharge for a Swedish population-based, consecutive cohort of forensic psychiatric patients (n = 125). The median length of stay for the whole cohort was 951 days, but patients with a restriction order stayed in hospital almost five times as long as patients without. Restriction orders were related to convictions for violent crime, but not for any other differences in demographic or clinical variables. The majority of the patients (60%) were involved in adverse events (violence, threats, substance abuse, or absconding) at some time during their treatment. Patients with restriction orders were overrepresented in violent and threat events. Previous contact with child and adolescence psychiatric services, current violent index crime, psychotic disorders, a history of substance, and absconding during treatment predicted longer length of stay. Being a parent, high current Global Assessment of Functioning scores, and mood disorders were all significantly related to earlier discharge. In a stepwise Cox regression analysis current violent index crime and absconding remained risk factors for a longer hospital stay, while a diagnosis of mood disorder was significantly related to a shorter length of stay.     

论法治政府的标准

法治政府的评价标准,是法治政府建设目标的进一步具体化、展开和延伸,也是衡量一个国家法治政府实现程度的标尺。评价一个国家法治政府的实现程度包含四个方面的标准,即法治政府的价值标准、职权范围标准、行政体制构造标准和依法行政的标准。     

Levels of Generality in the Legal Reasoning of the European Court of Justice

The level of generality or of abstraction used to describe a precedent, a right, or the legislative intent behind a statutory provision or constituent purpose behind a constitutional provision can have a decisive impact on the outcome of a case. Characterising it in narrow terms has the effect of reducing the scope of decision of a judgment; conversely, a broader characterisation provides more leeway for a judge in a case to encompass its facts within the precedent, right or purpose in issue. The issue raised by the level of generality problem is the extent to which courts have a discretion or freedom of manoeuvre as to the level of generality they decide upon, and thus whether generality and abstraction are manipulable in the hands of judges and are not really predetermined by the legal sources in question or an established judicial method of interpretation. Uncontrolled judicial discretion of this kind is problematic from the point of view of the rule of law and democracy, especially when adjudication concerns constitutional provisions, the equivalent in the EU being interpretation by the European Court of Justice (ECJ) of the EU Treaties; reversal of ECJ interpretation through Treaty amendment is particularly difficult to achieve because it requires unanimous coordination by the Member States. This article examines two alternative ways of determining the correct or appropriate level of generality issue in ECJ interpetation, coherence or the legal traditions of the Member States, and argues in favour of the latter as a less subjective method. Application of the two alternative approaches is tested in two areas of EU law, state liability and criminal law.     

The Politics of the Rule of Law*

Abstract. The rule of law should be understood as part of the culture of democracy which requires a distribution of power between a periodically elected legislature and executive and an independent, but publicly accountable, judiciary in charge of a more slowly changing legal doctrine. The rule of law is also essential for the protection of individuals in fast changing pluralistic societies. In both its aspects the doctrine is a product of a particular historical culture, and requires a culture of legality, and not merely the introduction of a few legal rules, for its proper functioning.     

《左传》训诂丛札

<左传>文辞古奥,义蕴深微.由于时代悬隔,虽经历代训释,疑义犹夥.本义湮没,通假不明,指代不清,诸般情形,在在多有.本文就襄公时期若干训诂问题予以新的探讨.     

法的渊源意识的觉醒

迄今为止的法律学说在很大程度上是环绕着法的渊源展开的,法的形成和法的应用甚至以法的渊源为立命的前提性基础;然而法的渊源意识的基础和依托至今仍然殊为薄弱。奥斯汀固然奋力呼吁人们革除法和法的渊源研究方面的弊病,把法和法的渊源从散漫、驳杂和喧闹不已的“超市”中引领出来,却又失之于将其禁锢在一个狭隘的天地。奥斯汀身后的法律学人在探讨法的渊源方面亦有努力,但这种努力并未达致较为成熟的程度。实际的情形表明,如欲转变长期以来未能深究法的渊源因而总是被动地同法的渊源发生关联的情境,俾使法的渊源、法律学说和法律实践三者的融合处于和谐状况,促动法的渊源这种宝贵的资源、进路和动因在良法美制的形成方面展现上佳作用,很显然需要法律人形成自觉且科学的法的渊源意识,需要有普遍的法的渊源意识的觉醒。     

Review of The Victim of a Crime

Theoretical treatment of questions pertaining to the individual victimized by a crime and his behavior and role in the commission of the crime is essential for purposes of practical struggle with crime and for crime prevention. This book not only centers its attention on this subject, important for theory and practice, but also contains a further development of the subject. The authors have chosen to study questions pertaining to the victim, analysis of which was furthered by the completeness with which the subject is dealt with, the high level of scholarship, and the practical usefulness of the approach. Moreover, they did not confine themselves to questions relating to purely legal disciplines but examined a range of social relationships (criminological, psychological, and moral). The book interprets the concept of victimization-prone as "the possibility of becoming the sufferer from a crime in a situation when the outcome could, objectively, have been prevented" (p. 13). It would appear to us that the most successful aspect of the book is the treatment of the qualities and actions of the citizen leading to his being a victim and, consequently, placing him in the position of a damaged party.     

人权概念复杂性探析

人权概念的开放性、包容性和延展性决定了人权概念的动态变化,人权是对抗性权利、道德权利、习惯性权利、普遍权利,同时也是法律权利.人权的本质在于对弱势方的权利保护.     

Postmortem toxicology of drugs of abuse

Conducting toxicology on post-mortem specimens provides a number of very significant challenges to the scientist. The range of additional specimens include tissues such as decomposing blood and other tissues, hair, muscle, fat, lung, and even larvae feeding on the host require special techniques to isolate a foreign substance and allow detection without interference from the matrix. A number of drugs of abuse are unstable in the post-mortem environment that requires careful consideration when trying to interpret their significance. Heroin, morphine glucuronides, cocaine and the benzodiazepines are particularly prone to degradation. Moreover, redistributive process can significantly alter the concentration of drugs, particularly those with a higher tissue concentration than the surrounding blood. The designer amphetamines, methadone and other potent opioids will increase their concentration in blood post-mortem. These processes together with the development of tolerance means that no concentration of a drug of abuse can be interpreted in isolation without a thorough examination of the relevant circumstances and after the conduct of a post-mortem to eliminate or corroborate relevant factors that could impact on the drug concentration and the possible effect of a substance on the body. This article reviews particular toxicological issues associated with the more common drugs of abuse such as the amphetamines, cannabinoids, cocaine, opioids and the benzodiazepines.     

Effect of History and Context on Forensic Pathologist Interpretation of Photographs of Patterned Injury of the Skin

In a previous study, a survey‐based analysis of pathologist diagnoses of patterned injury was performed. Subjects were provided with photographs of “classic” injuries and asked to diagnose the lesion in the absence of history or context. There was a relatively low diagnostic consensus among respondents. A second survey suggested that the disparate answers were not due to a strong belief in different diagnoses, but instead reflected how the respondents dealt with ambiguity. A third survey was created that asked participants to evaluate patterned injuries of the skin, but provided history and contextual information. The addition of history and contextual information increased consensus from a median of 80% to 98% on a per‐question basis. Confidence increased from a median of 56%–92%. These results demonstrate the importance of history and context in medical diagnosis of patterned injuries of the skin.     

Fear of lack of adequate medical care not well-founded fear of persecution

The Federal Court-Trial Division refused to set aside the Immigration and Refugee Board's (IRB) decision that a refugee claimant was not a Convention refugee because she had not proven a well-founded fear of persecution based on her HIV status or AIDS diagnosis. The court emphasized that the fear of a lack of adequate medical treatment, without a clear link to a ground under the United Nations Convention relating to the Status of Refugees, does not constitute a well-founded fear of persecution.     

加强党的执政能力建设的理论体系

党的执政能力建设,在内容上不断丰富,是社会发展到一定程度而形成的科学的理论体系;在理论上不断创新,是相对独立的理论体系;在体系上不断完善,是发展和开放的理论体系。     

关于主观证明责任的界定与基本范畴研究

在诉讼上,当事人的主观证明责任与当事人的主张责任息息相关,因此,主观证明责任的履行,主要是针对当事人在提出事实主张之后为获得对其有利的裁判结果所无法回避的现象。相较而言,无论诉讼终结时案件事实出现何种状态,法院均不得拒绝裁判,因此,客观证明责任的产生,主要是针对法院在作出裁判的结果上所无法回避的现象。可见,主观证明责任与客观证明责任居于不同的范畴,发挥着不同的价值功能,二者之间既不可相互替代,又不可混淆。     

The Genesis of the Austrian Model of Constitutional Review of Legislation

Abstract The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court.     

Reconstruction of the angle of shot by using computed radiography of the head

In a case of murder by a single .22 caliber bullet fragmented in the head, determination of the trajectory was a key issue in identifying which of 2 windows, 1 of which was associated with 2 suspects, was the site of fire. For this purpose, we processed the computed tomography of the victim's head by using a radiation therapy planning system called Plato, which is routinely used in radiation oncology. This tool provided a 3-dimensional reconstruction of the cranio-cerebral lesions and a spatial location of bullet and bone fragments. In this article is described the more intuitive relationship with forensic and ballistic data obtained from the 3-dimensional visualization and the physical and mathematical analysis used to calculate the angle of shot.     

论法学研究方法的多元化趋向

法学研究方法是人类进行法律认识的一种立场和途径。近代以来 ,法学研究方法经历了科学主义、现代性和后现代的发展过程。法学研究的现代特征表明 ,建立多元、综合、整体化的研究方法是历史的趋势 ,也是法哲学和法学家们的主要任务