物权法定原则

物权法定原则决定了物权法的基本性质与特征,也严格地限制了当事人在创设新型物权、改变既有物权之内容等方面的意思自由。物权法定原则的内涵是指物权的种类、内容、效力以及公示方法由法律规定,原则上不能由法律之外的规范性文件进行规定,也不能允许当事人自由创设物权的种类以及确定物权的内容、效力和公示方法。作者比较了物权法定模式的表述方式和基本功能,并认为我国物权法中物权法定中的“法”应当被主要限定为法律;司法解释应当具有一定的创设物权的功能;判例不能创设物权。当事人关于物权设定的约定违反物权法定原则的法律后果,应当根据不同的情况来确定。     

论“本质错误”——以罗马法为中心

在罗马法中,本质错误与身份错误、行为性质的错误、标的物错误并称为使行为无效的四种实质性错误。本质错误与材料错误相关又不等同于材料错误。本质错误的内涵见于D.18,1,9,2中的"醋为酒卖"案,是在社会经济功能影响下的标的物之内在特性发生错误。本质错误的外延见于"古杯"案及D.18,1,11、D.18,1,14等文本,涵涉了大部分的材料错误和性别错误,并可以作为一种兜底条款适用于那些对诸如艺术品价值、作者发生错误的情形。本质错误在近代演化为法国法的"实质错误"、意大利法的"本质上的错误"、瑞士法的"重大错误"、德国法和我国台湾地区法的"性质错误",在赋予法官自由裁量权的功能上,它们和中国大陆民法的错误制度殊途同归。     

Public Beliefs in the Causes of Wealth and Poverty and Legitimization of Inequalities in Russia and Estonia

The article analyzes the attributions of the causes of poverty and wealth in Russia and Estonia in 1991 and 1996 and their determinants. Among the latter are the perceived actual justice of the society, the perceived size of the middle class, and the personal position in the system of inequalities. Despite the economic hardships and a rise in inequalities in both countries, individualistic explanations of wealth and poverty have increased over the 5 years between the surveys. At the same time respondents in both countries demonstrated a growing awareness of the importance of starting positions and connections to achieve wealth. The perceived middle class has a significant effect on attributions of poverty but not on wealth. Russians in Estonia have a particular bias against wealth, whereas non-Russians in Russia are more likely to justify wealth on the basis of individual merit. Explanations of poverty and wealth in Estonia are more rooted in the factors of socialization (age, education, and gender), whereas in Russia they are more rooted in the changes in the family financial circumstances between 1991 and 1996. There was a general increase in support for government intervention in distribution in both countries.     

对物诉讼与我国的船舶扣押法律制度

对物诉讼源于罗马法,却只在英国得到延续,并在其海事诉讼中得到巨大发展.随着英国殖民者将对物诉讼制度带到其殖民属地,移植法律与本地法律互相作用,逐渐发展出英美法系各国目前各具特色的扣船制度,其中最有代表性的莫过于英美两国的对物诉讼制度.我国的扣船制度既坚持了对人诉讼的传统,又大胆吸收了对物诉讼制度的合理内涵,反映了国际船舶扣押立法中对人诉讼与对物诉讼相互融合的良性发展态势.     

论物权请求权的性质——以物权请求权与罗马法诉权之关系变迁为视角

物权请求权发轫于罗马法的诉权,凭借对物之诉和对人之诉存在于罗马法中。在部门法运动和中世纪法学理论的推动下,物权请求权分立于罗马诉权。尽管物权请求权承继罗马诉权的程序功能,且得诉权之行使方可实现,但是物权请求权非因之而附着于诉权,而是独立于诉权,发展为横跨实体权利与诉讼程序之间的桥梁,为物权的顺利实现提供服务和保障。但物权请求权不附属于物权,也非物权的效力所致,它是异于物权的,在物权存续期间,于一物的同一类型的物权请求权因同质的侵害行为会反复出现,但基于物权请求权的相对性和相对人的变化,此时的物权请求权与彼时的物权请求权并非同质,物权请求权是一种相对独立于物权的请求权。正是基于物权请求权的此等属性,物权请求权才可能成为诉讼时效的客体。     

Confidence in the police in Latin America

The study of confidence in the police in Latin America is rare, partially for lack of interest and partially for lack of reliable data. Social, economic, and political instability in those countries also contributes to the problem. Relying on data from the World Values Surveys 1995-1997, the current research proposed a theory of the police in transitional societies and reported the results of analyses of confidence in the police in nine countries of Latin America. The levels of confidence in the police in the nine Latin American nations were compared with that of the U.S. The inclusion of a heterogeneous set of control variables in the multivariate analysis yielded several consistent predictors of confidence in the police. Similar to the findings in the U.S., confidence in the police in Latin America was part of the broader attitude complex. Different from the findings in the U.S., confidence in the police was positively related to one's employment status and religiosity, and negatively to income.     

和谐社会建设与经济法创新

2006年,中国经济法学界按照建设和谐社会的总要求,围绕我国经济和社会发展中经济法问题展开研究,在领域的拓展、方法的创新、认识的深化等方面均取得了明显的进步,特别是总论中的理念、权利和研究方法研究,宏观调控法中的所得税法和计划法研究,市场规制法中的反垄断立法、消费者界定、证券业市场规制研究,跨领域制度中的涉农法律问题研究等。2007年经济法学研究有必要在论题的选择、方法的更新和交流的拓展方面作更多的努力。     

永佃权的历史考察及其当代价值

本文对中外永佃权的历史做了粗略的梳理 ,以期辨正学界对永佃权某些方面的误解。以此为据 ,进而阐明永佃权的当代价值。在考察中国和国外法律史的过程中 ,采用可靠的史料是重要的 ,而使用该国文化中特定的语言系统又是必须的。中国古代存在永佃制 ,但绝没有永佃权 ;中国的永佃制萌芽于隋唐而非秦汉或北宋 (英宗 ) ;永佃权虽然生成于私有制的土壤 ,但对我国物权法中的农地立法 ,仍有借鉴的价值。     

急性心肌缺血再灌注时Bax的免疫组织化学研究

目的　为心肌缺血 /再灌注损伤所致心性猝死的法医学诊断提供形态学依据 ,方法运用免疫组织化学方法 ,研究Bax蛋白在心肌组织中不同区域的表达。　结果　对照组正常心肌组织无Bax蛋白表达。Bax蛋白再灌注 0 .5h后即可在缺血区域表达 ,且表达主要在心肌内层。再灌注 1h后可观察到Bax蛋白不仅表达于心肌内层且已经扩展至心肌的全层。再灌注 2h发现心肌外层表达明显强于心肌内层 ,随着再灌注时间的延长可以发现Bax蛋白的表达逐渐减弱。　结论　在急性心肌缺血再灌注中 ,Bax基因对心肌细胞凋亡的发生有着重要的作用 ,且可以作为心肌缺血再灌注的早期诊断提供一项辅助诊断依据。     

Hypophyseal damage in persons with cerebrocranial injuries and who died in the hospital

The pituitary was examined in patients with craniocerebral injuries who died in hospital in various periods after treatment. Control group consisted of victims died at the site of accident. The results indicate the significance of examining the pituitary in craniocerebral injuries for the diagnosis of thanatogenesis, particularly in patients died in hospital. Causes of traumatic changes in the organ were determined, highly incident in the practice of forensic medical experts: directly during injury, as a result of skull bone fractures; during development of dislocation syndrome and in disorders of blood and lymph circulation in the brain matter; resultant from augmenting traumatic edema of the brain.     

日本法医学DNA的发展与现状

日本法医学DNA研究始于1983年,从整体上看,其发展历程即是欧美法医学 DNA发展史的缩影,在一些课题研究方面走在世界的前列.1991年成立DNA多型学会,1997年建立DNA鉴定方针,对一些问题做了有关规定与解释,以保证DNA鉴定的正确使用.     

Carbon monoxide-related deaths in a metropolitan county in the USA: an 11-year study

Carbon monoxide (CO) poisoning as a cause of death is well documented in industrialized countries. The objective of this study was to compare demographic data in deaths due to accidents (in fires) and suicides in the same population between 1988 and 1998. Furthermore, the potential effect of a community wide education effort regarding safety in the home was assessed. Postmortem reports were reviewed for all deaths examined at the Office of the Cuyahoga County Coroner in Cleveland, OH, USA. During the study period, there were 209 accidental deaths due to fires in the home (6.5% of all accidents in the home) and 182 CO deaths by suicide (9.8% of all suicides). Demographic characteristics of the two groups differed: while males represented the majority of cases in both groups (55% of accidents, 70% suicides), race specific death rates were higher for whites than blacks (18/100,000 white, 3/100,000 black) in suicides compared with 29/100,000 deaths for blacks and 11/100,000 for whites in accidental cases. Fire deaths were prevalent in the young (0-9 years) and old (>60) whereas in the suicide group the age specific death rate was highest for those over 70 years. The majority of fire deaths occurred in the city of Cleveland but suicides were prevalent in the suburbs. More fire deaths occurred in December than any other month whereas more suicides occurred in April. In 1992, there was a community wide effort to provide free smoke detectors to residents in Cleveland. In 1992, there were 4.2/100,000 fire deaths in the city. This decreased to 0.6/100,000 in 1996, increased to 1.2/100,000 in 1997 followed by a decrease to 0.8/100,000 in 1998. This suggested that the program may have aided in decreasing these types of deaths. Deaths due to fires in the suburbs were <1/100,000 throughout the study period.     

Pitfalls of Computed Tomography 3D Reconstruction Models in Cranial Nonmetric Analysis*

Many studies in the literature have highlighted the utility of virtual 3D databanks as a substitute for real skeletal collections and the important application of radiological records in personal identification. However, none have investigated the accuracy of virtual material compared to skeletal remains in nonmetric variant analysis using 3D models. The present study investigates the accuracy of 20 computed tomography (CT) 3D reconstruction models compared to the real crania, focusing on the quality of the reproduction of the real crania and the possibility to detect 29 dental/cranial morphological variations in 3D images. An interobserver analysis was performed to evaluate trait identification, number, position, and shape. Results demonstrate a false bone loss in 3D models in some cranial regions, specifically the maxillary and occipital bones in 85% and 20% of the samples. Additional analyses revealed several difficulties in the detection of cranial nonmetric traits in 3D models, resulting in incorrect identification in circa 70% of the traits. In particular, pitfalls included the detection of erroneous position, error in presence/absence rates, in number, and in shape. The lowest percentages of correct evaluations were found in traits localized in the lateral side of the cranium and for the infraorbital suture, mastoid foramen, and crenulation. The present study highlights important pitfalls in CT scan when compared with the real crania for nonmetric analysis. This may have crucial consequences in cases where 3D databanks are used as a source of reference population data for nonmetric traits and pathologies and during bone-CT comparisons for identification purposes.     

Petechial Hemorrhages and Ethanol in Deaths from Intoxication

Petechiae in conjunctivae and in the palpebrae/skin of the eyelids are of particular interest for the forensic pathologist, because of their association with pressure on the neck. They have been described in the eyelids of intoxicated persons both in case reports and in text books of forensic pathology. We studied 590 deaths caused by intoxication, and 75 had petechiae either in the conjunctivae, the eyelids, or in both locations. We examined the influence of drugs and ethanol on the location of the petechial hemorrhages in these deaths. Deaths with ethanol in blood and in urine/vitreous humor more often had petechiae in both locations than those without. This association was statistically significant, independent of body position and livor mortis. No association between the location of petechiae, medicinal drugs, or narcotics was found. These results suggest that ethanol may contribute to the development of petechial hemorrhages in deaths from intoxication.     

Fatal intoxications in the Nordic countries. A forensic toxicological study with special reference to young drug addicts

Fatal intoxications in the 15-34 age group in the five Nordic countries during the years 1984 and 1985 (Sweden only in 1984) were investigated. The known drug addicts were studied separately. The highest incidence of intoxications, calculated per 10(5) population, was found in Finland (11.3), followed by Denmark (10.3), Sweden (8.5), Iceland (7.2) and Norway (6.6). The percentage of intoxications caused by drugs was 92 in Denmark, 71 in Norway, 66 in Sweden, 50 in Finland and 17 in Iceland. Ethanol intoxications were seen 5-7 and 2-3 times as frequently in Finland and in Iceland, respectively, than in the other three countries. Carbon monoxide intoxications accounted for two-thirds of all fatal intoxications in Iceland. Drug addicts accounted for 62% of all fatal intoxications in the Danish material. The corresponding figures were 33% in the Norwegian, 16% in the Swedish and 5% in the Finnish material. No deaths in drug addicts were found in Iceland. Most drug addicts in Denmark, Norway and Sweden died of hard drugs and most in Norway and Sweden, from heroin or morphine, whereas in Denmark other strong analgesics, such as methadone, dextropropoxyphene and ketobemidone, accounted for 40% of all hard-drug-related fatal intoxications. To a certain extent the results reflect differences in the legal autopsy routines in the various Nordic countries. However, the ascertainment of drug addicts is assumed to be near-complete in each country.     

Calculation of tension exerted on a ligature in incomplete hanging.

The study is devoted to one of the numerous factors (namely, body posture), which determine the strength of the neck compression in hanging. Mathematical modeling method and achievements of biomechanics were used. Human body was supposed to consist of 16 freely joined hard parts. The possibility of ligature tension calculation in any position in incomplete hanging is shown. Weight ranges for hanging of male persons in different body positions are presented: in standing posture the ligature is stretched by more than 65% of the body weight, in kneeling position by 64-74%, in sitting by 17-32%, in recumbent posture by less than 18% of the body weight. The importance of the accurate recording of a corpse posture at the place of accident is emphasized, as well as the necessity of the corpse mass evaluation. Significance of the work for medico-legal practice is illustrated by the study of the neck organocomplex trauma in 108 cases of suicidal hanging. Injuries were revealed stereomicroscopically after the complete preparation of the hyoid bone and laryngeal cartilages, preliminary fixed in the formalin solution. Trauma to the neck complex (fractures, infractions, fissures) was found in more than 64% of cases, differences in many of the groups compared are significant, P<0.05. Vulnerability index hyoid bone/thyroid cartilage was 1.75 in complete hanging of the body, 0.88 in standing position, 0.63 in kneeling, 0.33 in sitting, 0.25 in recumbent posture. Results of the study may be used for investigation of dying processes and morphology of hanging.     

创伤致休克和多器官功能不全综合征中的细胞凋亡研究

研究创伤致休克和多器官功能不全综合征中的细胞凋亡 ,探讨细胞凋亡在创伤性休克和多器官功能不全综合征中的发生机理及其在法医学上的应用。用TUNEL末端标记、流式细胞仪等方法 ,对广泛软组织挫伤死亡尸解15例的肝、肾、心、脑等组织进行凋亡检测。其中因创伤性休克死亡 10例 ;因MODS死亡 5例。TUNEL末端标记法检测 :创伤休克组肝、肾、心、脑的细胞凋亡指数 (AI)明显高于对照组 ;创伤MODS组肝、肾、心、脑的细胞凋亡指数 (AI)明显高于创伤休克组和对照组 ,经统计学处理有显著性差异 (P <0 0 1)。流式细胞仪检测 :创伤休克组肝、肾、心、脑的凋亡峰值分别为 2 0 3 %、 19 1%、 18 6 %、 30 0 % ;创伤MODS组肝、肾、心、脑的凋亡峰值分别为 42 2 %、 45 1%、 39 7%、 6 2 9%。创伤致休克和MODS死亡人体尸解器官中细胞凋亡增多。     

Detection of drugs of abuse in simultaneously collected oral fluid, urine and blood from Norwegian drug drivers

Blood and urine samples are collected when the Norwegian police apprehend a person suspected of driving under the influence of drugs other than alcohol. Impairment is judged from the findings in blood. In our routine samples, urine is analysed if morphine is detected in blood to differentiate between ingestion of heroin, morphine or codeine and also in cases where the amount of blood is too low to perform both screening and quantification analysis. In several cases, the collection of urine might be time consuming and challenging. The aim of this study was to investigate if drugs detected in blood were found in oral fluid and if interpretation of opiate findings in oral fluid is as conclusive as in urine. Blood, urine and oral fluid samples were collected from 100 drivers suspected of drugged driving. Oral fluid and blood were screened using LC-MS/MS methods and urine by immunological methods. Positive findings in blood and urine were confirmed with chromatographic methods. The analytical method for oral fluid included 25 of the most commonly abused drugs in Norway and some metabolites. The analysis showed a good correlation between the findings in urine and oral fluid for amphetamines, cocaine/benzoylecgonine, methadone, opiates, zopiclone and benzodiazepines including the 7-amino-benzodiazepines. Cocaine and the heroin marker 6-monoacetylmorphine (6-MAM) were more frequently detected in oral fluid than in urine. Drug concentrations above the cut-off values were found in both samples of oral fluid and urine in 15 of 22 cases positive for morphine, in 18 of 20 cases positive for codeine and in 19 of 26 cases positive for 6-MAM. The use of cannabis was confirmed by detecting THC in oral fluid and THC-COOH in urine. In 34 of 46 cases the use of cannabis was confirmed both in oral fluid and urine. The use of cannabis was confirmed by a positive finding in only urine in 11 cases and in only oral fluid in one case. All the drug groups detected in blood were also found in oral fluid. Since all relevant drugs detected in blood were possible to find in oral fluid and the interpretation of the opiate findings in oral fluid was more conclusive than in urine, oral fluid might replace urine in driving under the influence cases. The fast and easy sampling is time saving and less intrusive for the drivers.     

公共部门劳动关系的法律环境及其调适

《劳动合同法》第二条第二款规定的公共部门①劳动关系,在外观上与企业内劳动关系并无差别。但因用人单位的特殊性而导致这类劳动关系具有区别于企业劳动关系的某些特质。公共部门劳动关系存有区别于企业内劳动关系的法律环境,在协调机制也有自己的特点,需要针对公共部门劳动关系的特质而采取不同的员工激励方式。     

经济全球化背景下我国BOT立法的反思与重构

我国现行BOT立法不仅与国情不符,更与经济全球化的深入推进不相适应。法律体系不科学、不完整、不具前瞻性,导致BOT在我国的适用存在诸多问题和障碍,这些问题和障碍不仅严重阻碍了BOT方式在我国的顺利开展,也不能满足我国更深更广地融入经济全球化的要求。为此必须在经济全球化的大背景下,立足国情,借鉴国际经验,从立法模式、立法原则、立法体系、游戏规则等方面全方位重构BOT立法。