Medical and legal aspects of genital mutilation and circumcision part I: female genital mutilation (FGM)

Female genital mutilation (FGM) is considered to be against the law and against morality not only in Western countries, although a woman of age and able to consent may sometimes think differently. The procedure may have serious physical and emotional consequences for the girl or woman. Nevertheless there are attempts to justify the procedure with medical and hygienic pseudoarguments, ideology, freedom of religion, cultural identity and social adequacy. Outside the Western world, some people claim that religion and culture alone justify the practice. In Germany, parents can lose the right to determine the residence of their daughter, if she is faced with the risk of genital mutilation in order to prevent that the child or girl is taken to her home country. Genital mutilation as a gender-specific threat is recognized as a reason to grant asylum or prevent deportation. Proposals to make genital mutilation a separate punishable offence are presently discussed by the legislator.     

Sub-Saharan African randomised clinical trials into male circumcision and HIV transmission: methodological, ethical and legal concerns

In 2007, WHO/UNAIDS recommended male circumcision as an HIV-preventive measure based on three sub-Saharan African randomised clinical trials (RCTs) into female-to-male sexual transmission. A related RCT investigated male-to-female transmission. However, the trials were compromised by inadequate equipoise; selection bias; inadequate blinding; problematic randomisation; trials stopped early with exaggerated treatment effects; and not investigating non-sexual transmission. Several questions remain unanswered. Why were the trials carried out in countries where more intact men were HIV-positive than in those where more circumcised men were HIV-positive? Why were men sampled from specific ethnic subgroups? Why were so many participants lost to follow-up? Why did men in the male circumcision groups receive additional counselling on safe sex practices? While the absolute reduction in HIV transmission associated with male circumcision across the three female-to-male trials was only about 1.3%, relative reduction was reported as 60%, but, after correction for lead-time bias, averaged 49%. In the Kenyan trial, male circumcision appears to have been associated with four new incident infections. In the Ugandan male-to-female trial, there appears to have been a 61% relative increase in HIV infection among female partners of HIV-positive circumcised men. Since male circumcision diverts resources from known preventive measures and increases risk-taking behaviours, any long-term benefit in reducing HIV transmission remains uncertain.     

法律推理中的独特思维倾向及其可能的误区

法律推理是一种特殊的推理。它既具有推理的一般特征,也有自身的独特性。法律推理的独特性主要表现在推理主体的思维方式上。在法律推理中,人们根深蒂固地具有三种思维倾向:规则取向、概念取向与自治取向。这些思维倾向是在长期的法律推理活动中形成的,因此在法官、律师、学者等专业或经常从事法律推理的主体身上最为凸显。正因如此,它们有时也被称为法律人的思维方式或法律(人)思维。一般情况下,这些思维倾向使得相关主体更有可能得出正确的裁判结论,有助于说明判决的合法性来源,并在一定程度上增进了限权、平等、法治等对于现代社会来说极为重要的政治道德理想。但如果在一些相关理论问题上缺乏正确认识,它们也可能会给法律事业造成危害。为了推动法律领域内的知识增长与实践进步,我们要对这些思维倾向有充分、自觉的认识,一方面要承认它们的存在并给予应有的尊重;另一方面也要注意防范可能的风险。     

Freedom and Sovereignty a Fatal Relationship Outlined with Jean-Luc Nancy and Marquis De Sade

Sovereignty and freedom are interlinked in a manner of both ambivalence and interdependence. Neither can sovereignty confirm itself without presupposing for itself a pure state of freedom; nor can freedom conceive and realise itself without interweaving with sovereignty. Both concepts collide with each other as sovereignty usually signifies a certain social or cultural power or order; and freedom regularly is related to a sovereign subjectivity. Therefore, the question is: how far might sovereignty serve as a source of freedom that, at the same time, has to be limited by this freedom itself. When the sovereign (subject) defines where the limits of freedom are, he will mostly define the limits of experiencing such freedom for all those who have to follow his decision on the limit. Further, if the free (sovereign) subject itself defines its own limits, it will supposedly end up rejecting its interweaving with any other subjectivity beyond its own. The problem remains: both sovereignty and freedom cannot be realised if they are already limited.     

手术同意书的法律性质及效力

目前,医患矛盾呈现愈演愈烈的态势,由于医患关系在现今社会中的重要地位,医患双方的矛盾已严重影响到整个社会的和谐。作为维护医患双方权益的手术同意书,本应是减少摩擦的“润滑剂”,但是实际上并没有发挥它真正的作用,反而引发了医患双方更多的矛盾。我国手术同意书制度存在许多问题,其中之一就是医患双方对其法律性质认识不清。针对手术同意书的法律性质,有合同说、风险承担说、授权委托说及知情同意说等多种学说。本文针对这些学说进行具体分析,并且着重分析了其中的合同说与知情同意说,在此基础上指出了手术同意书的法律效力：一方面表明医疗行为合法,另一方面正确的划分医患双方的责任承担范围。最后在知情同意法律性质的基础上,对现行手术同意书从主体、标准范围、方式和例外情形等角度提出改进建议,希望可以使该制度更趋合理化,促进医患关系的和谐发展。     

Bleedings, purges, and vomits: Dr. Benjamin Rush's republican medicine, the bilious remitting yellow-fever epidemic of 1793, and the non-origin of the law of informed consent

To the consternation of many physicians, the modern law of informed consent imposes certain constraints on their actions, not least that they respect patients' decisions to redefine at will the scope of care. The consequences of this transfer of power are often a nuisance and occasionally fatal, but always a reflection of democracy's leveling march: Physicians now take orders rather than give them. However frustrating the modern preference for process over result might be, we should ask ourselves-before condemning the law's evolution-about the consequences for patients' health of a more radically democratic practice of medicine. This paper proposes to examine this question as framed by the life of Dr. Benjamin Rush, who, in addition to signing the Declaration of Independence, crafted a medical practice uniquely suited to the young Republic's presumed moral character: Self-aware sufferers would promptly identify their own maladies and courageously treat themselves. In the end, his enterprise was flawed because his democratic instincts misled not only his scientific inquiries (disease is complex, not simple) but also his practice recommendations (patients are scared, not intrepid). Reflection on Rush's failed project should give pause to those who lament the passing of paternalistic medicine, for the law's requirements, however onerous they might be, tolerably accommodate both patients' need for physicians' expertise and our democratic belief that consent is the fundamental precondition of all rule.     

言论自由、出版自由、新闻自由的主体及其法律保护

言论自由的主体是自然人 ,出版自由的主体是自然人和法人 ,新闻自由的主体是法人。法律应当对言论区别不同类型给以相应的保护 ;对出版自由 ,法律既要保护 ,又要限制 ,但二者的界限尚有待明确 ;法律对新闻自由在保护的同时 ,要注意它与公民个人权利、与国家权力、与公众人物的利益发生冲突时应采取不同的调整手段。     

Medical devices; exception from general requirements for informed consent. Interim final rule

The Food and Drug Administration (FDA) is issuing this interim final rule to amend its regulations to establish a new exception from the general requirements for informed consent, to permit the use of investigational in vitro diagnostic devices to identify chemical, biological, radiological, or nuclear agents without informed consent in certain circumstances. The agency is taking this action because it is concerned that, during a potential terrorism event or other potential public health emergency, delaying the testing of specimens to obtain informed consent may threaten the life of the subject. In many instances, there may also be others who have been exposed to, or who may be at risk of exposure to, a dangerous chemical, biological, radiological, or nuclear agent, thus necessitating identification of the agent as soon as possible. FDA is creating this exception to help ensure that individuals who may have been exposed to a chemical, biological, radiological, or nuclear agent are able to benefit from the timely use of the most appropriate diagnostic devices, including those that are investigational.     

Turning the Other Cheek: Reassessing the Impact of Religion on Punitive Ideology

Religion has long been recognized as an underlying aspect of correctional policies. Researchers, however, have only recently begun to move beyond considerations of how fundamentalist Christian affiliations might shape preferences for punitive correctional policies. The present study broadens the extant research by examining multiple aspects of religious beliefs and how they affect support for capital punishment and harsher local courts. Analyses of General Social Survey data show that religion has divergent effects. Beyond a mere fundamentalist or conservative religious view, those who have a rigid and moralistic approach to religion and who imagine God as a dispassionate, powerful figure who dispenses justice are more likely to harbor punitive sentiments toward offenders. In contrast, those who have a gracious or loving image of God and who are compassionate toward others—that is, those who take seriously the admonition to “turn the other cheek”—are less supportive of “get tough” policies. In the end, not only is religion a multi‐dimensional phenomenon but also its features likely coalesce to divide believers into opposite camps—with one set of attributes fostering harsh sentiments toward offenders and another set of attributes tempering punitiveness and justifying interventions aimed at helping the criminally wayward.     

Protection of human subjects; informed consent--FDA. Final rule

The Food and Drug Administration (FDA) is amending its current informed consent regulations to permit harmonization of the Department of Health and Human Services' (DHHS) policies on emergency research and to reduce confusion on when such research can proceed without obtaining an individual subject's informed consent. This regulation provides a narrow exception to the requirement for obtaining and documenting informed consent from each human subject, or his or her legally authorized representative, prior to initiation of an experimental intervention. The exception would apply to a limited class of research activities involving human subjects who are in need of emergency medical intervention but who cannot give informed consent because of their life-threatening medical condition, and who do not have a legally authorized person to represent them. FDA is taking this action in response to growing concerns that current rules are making high quality acute care research activities difficult or impossible to carry out at a time when the need for such research is increasingly recognized.     

The role of coronial autopsies in a context of decreasing hospital autopsies: an investigation of the issues

This article scrutinises the argument that decreasing hospital autopsy rates are outside the control of medical personnel, based as they are on families' unwillingness to consent to autopsy procedures, and that, as a consequence, the coronial autopsy is the appropriate alternative to the important medical and educational role of the autopsy It makes three points which are well supported by the research. First, that while hospital autopsy rates are decreasing, they have been doing so for more than 60 years, and issues beyond the simple notion of consent, like funding formulae in hospitals, increased technology and fear of litigation by doctors are all playing their part in this decline. Secondly, the issue of consent has as much to do with families not being approached as with families declining to give consent. This is well supported by recent changes in hospital policy and procedures which include senior medical personnel and detailed consent forms, both of which have been linked to rising consent rates in recent years. Finally, the perception that coronial autopsies are beyond familial consent has been challenged recently by legislative changes in both Australia and the United States of America which allow objections based on religion and culture to be heard by coroners. For these reasons, it is argued that medical personnel need to focus on increasing hospital autopsy rates, while also addressing the complex ethical issues associated with conducting medical research within the context of the coronial autopsy.     

试论托尔斯泰创作中的审丑意识

托尔斯泰历来被称为现实主义大师,被当作批判现实主义的顶峰代表人物。其实托尔斯泰的作品之所以魅力无穷,并非仅限于此,与他作品里含有“审丑”成份也不无关系。具体表现为“自然至善”实现过程的反主体性;个体实践自由的非理性和神秘性;主体对自然客体的难以超越性。“审丑”作为20世纪现代美学（或现代感性学）的一个主要特征,从这个意义上说,托尔斯泰应是一个既有别于现实主义,又不同于现代主义的风格独特的学大师。     

论任意侦查标准之构建

如何区分任意侦查与强制侦查是侦查研究中最为基础的问题之一,同时也是任意侦查原则与强制侦查法定主义研究中最为核心的问题。有关任意侦查的界限与标准,在日本学界先后存在"有形力说"、"侵犯权益说"、"综合判断说"等不同观点,美国经同意搜查规则中对"同意"的认定则为日本诸种学说有益的补充。对于任意侦查的界限与标准应从主观与客观两个方面进行构建。     

Legal prerequisites for clinical trials under the revised Declaration of Helsinki and the European Convention on Human Rights and Biomedicine.

Biomedical research is a perennially controversial subject. While the provisions of the Revised Declaration of Helsinki enjoy world-wide acceptance, they are increasingly placed in question--not least by the Council of Europe's Bioethics Convention, which allows non-therapeutic research in restricted cases on those incapable of giving informed consent. Taking as its starting-point the fundamental conflict between the general interest in research and the individual interests of the patients concerned, this article analyses the conditions under which medical experimentation on human beings is permissible. The article recognises the model of risk/benefit analysis and the doctrine of informed consent as equally valid core principles which do not conflict with restricted, non-therapeutic research, whether on patients who lack the capacity to consent or in placebo-controlled trials.     

Sex crime legislation: Proactive and anti-therapeutic effects

Therapeutic jurisprudence may have its major role within law practice, but analysis of the law from a therapeutic perspective is a task that should not be neglected; how a piece of legislation is designed and formulated certainly influences the therapeutic outcome of a legal process. This article uses sex legislation as an example to demonstrate how the old rape law based on coercion has anti-therapeutic effects on rape victims. If the law requires resistance, it implies that a woman is sexually available until she resists physically, resulting in an attitude that a woman reporting rape without injuries should be mistrusted. This mistrust of the victim and the victim's attendant feelings of self-blame aggravate the victim's trauma. On the other hand, a modern rape law based on lack of consent gives the signal that a woman is not available until she has given her consent, resulting in a different starting position for the investigation. Since the will of the victim must be respected, the victim herself must be respected in the legal process. Furthermore, being able to tell one's story in a respectful atmosphere can be more important for the well-being of the victim than the outcome of the reported case.     

关于“教唆不满十八周岁的人犯罪的,应当从重处罚”的理解与适用

我国通说的刑法理论认为犯罪主体必须具有刑事责任能力,无刑事责任能力之人实施的危害行为不构成犯罪;同时,教唆不具有刑事责任能力之人实施"犯罪"构成间接正犯,对其也可以适用刑法第二十九条第一款的规定即从重处罚。这种观点一方面认为无刑事责任能力之人实施的危害行为不构成犯罪,另一方在他人教唆的情况下,无刑事责任能力之人却又可以实施"犯罪,"这种解释显然无法成立。     

Assessing police treatment in Ecuador: the view of satisfied and disaffected female serious offenders

This empirical study examines procedural justice perceptions among 51 female serious offenders in Ecuador, with the aim of identifying differences between those women who were satisfied with law enforcement and those who were not. The results demonstrate that when women were treated with courtesy and respect, and their rights were acknowledged, they felt satisfied with the police, in a way that they did not give importance to the irregularities they observed while arrested and in custody. On the other hand, the majority of women participants were dissatisfied with the police. Their dissatisfaction with, and lack of trust in, the authorities affected their desire to cooperate with police activities. The study also demonstrates that, although the Ecuadorian police force has made considerable efforts in promoting citizens’ trust during the last 7 years, corruption and illegal police conduct when dealing with offenders are far from uncommon.     

成文宪法中的宗教内容比较研究

宗教信仰自由权是世界范围内各成文宪法保护的重要内容。与其他人权的宪法保护不同,宗教信仰自由权在各国宪法中具有扩散性保护特征。只有综合考量宪法规范中的宗教内容,才能准确理解宗教信仰自由权的宪法规范保护。通过在各成文宪法中查找与宗教相关的关键词,可以发现宗教信仰自由权成文宪法保护具有普遍性。以宗教信仰自由权为核心,辅之以政教关系的相关规定,构成了宗教问题宪法保护的基本框架。从内容上看,成文宪法保护的宗教信仰自由权具有内容的绝对性与相对性相统一、主体自主选择与结社自由相结合的特点;从属性上看,宗教信仰自由权具有入世性与政治性并存的特征。