医学会应做好准备 积极应对专家出席法庭

新修订的《中华人民共和国民事诉讼法》于2013年起开始实施。当事人对鉴定结论有异议,要求鉴定专家出席法庭作证已是大势所趋。医学会开展医疗事故(医疗损害)鉴定,专家签名和出席法庭的问题已经没有讨论的必要,如何采取措施积极应对是医学会要迫切考虑解决的问题。医学会、相关专家学者对这一问题进行过多次讨论,提出了多种建议、过度办法以及应对措施,但具体如何操作,还需要在实践中总结和探索。笔者以为,塑造和培养一支优秀的鉴定专家队伍,保证鉴定结论客观、科学、公正,写好鉴定书分析意见,使鉴定结论令当事人信服,是解决这一问题的关键。     

Communicating forensic scientific expertise: An analysis of expert reports and corresponding testimony in Tasmanian courts

Forensic criminology examines the use of forensic science in society. Justice can be hampered, for example, if the communication of forensic scientific findings is unclear or misleading, even if unintentionally. Although various recommendations guide the communication of forensic science, it is unclear whether they are reflected in practice. This study explored the communication of forensic biology in 10 cases of major crimes against the person heard in the Tasmanian Supreme Court, where the standard practice is to issue brief summary reports in the first instance. The content of expert reports and corresponding testimony was analysed to determine its adherence to recommendations outlined in standards, practice notes, and research. While reports were found to be very brief, testimony elaborated on all major elements. Mostly elicited by the prosecution, some elements were volunteered by expert witnesses, or raised by defence. Overall, expert evidence in courts—but not reports (due to the use of brief summary reports)—largely adhered to recommendations. Further research is needed to determine the prevalence and effectiveness of alternative approaches to communication that were identified in certain cases.     

医疗诉讼中的医疗专家意见和法官自由裁量:谁主沉浮?

在医疗诉讼领域，医疗专家意见或行业“普遍做法”是强有力的证据但不是最终证据。著名的Bolam案似乎赋予医疗行业的普遍做法以终局性。Bolam测试标准不仅在治疗领域得到了适用，而且被扩展到了诊断领域和知情同意领域。但这一标准在澳大利亚和加拿大并没有得到认可。在Bolitho一案，英国的司法观点与澳大利亚和加拿大的司法观点逐渐接近。法官特别强调了来自医学界的观点是“有逻辑基础的”、“合理的”、“值得尊敬的”。鉴于医学专家意见的非终局性，尽管专家意见的存在，法官应运用风险-益处方法具体分析具体案件。     

McTear v Imperial Tobacco: understanding the role and limitations of expert epidemiological evidence in scientific litigation

The use of epidemiological evidence in litigation presents a range of challenges for both litigants and the courts. Given the complex statistical basis of epidemiology itself, it is possible that the technical and factual constraints associated with such evidence may fail to be properly considered by a trier of fact. The recent Scottish decision in McTear v Imperial Tobacco Ltd [2005] Scots CSOH 69 sets a high standard for the future use of epidemiological evidence and thoroughly evaluates the strengths and weaknesses of epidemiology generally. While epidemiological evidence remains controversial, and cannot in itself prove direct causation (nor causation in the individual), it is likely it will continue to be adduced as indirect evidence of general causation. It is also likely, however, that both the subjective and objective processes involved in epidemiological study design and reporting will be questioned by courts more thoroughly than has historically been the case. Further, failure by a party to adduce primary evidence (ie original data sets and interpretation thereof) of an epidemiological study which it seeks to rely on at trial will most likely undermine the value of adducing such evidence in the first place.     

The right to be forgotten: The Israeli version

The right to be forgotten and erase, originally introduced in the well-known case of Google Spain, has caused considerable legal debates on both theoretical and procedural issues. The Israeli Supreme Court has also just recently considered the issue when it was asked to enforce the right to be forgotten of an Israeli advocate, Jonathan Miller, and delist harmful information which appeared in a Google search, and was in truth related to a different adv. Jonathan Miller. The plaintiff relied on the Israeli Prohibition of Defamation Law. Liability was denied on the basis that the information was indeed true, and thus- justified. We suggest in this article that the court should have imposed liability in negligence, an open ended general tort that mainly applies when particular torts fail to supply a reasonable and just solution in new factual situations due to change in social, economic and technological circumstances.     

Can the Human Rights Bodies be Used to Produce Interim Measures to Protect Environment-Related Human Rights?

International environmental law does not protect individuals as such. On the other hand, human rights do not formally encompass the right to a healthy environment. This article argues that human rights bodies are suitable forums to protect environment-related human rights. They can do so by producing interim measures to prevent States' actions or inactions towards the environment from infringing on human rights, even if the harmful character of those actions is uncertain. It is demonstrated that the recourse to the precautionary principle is possible to achieve such anticipatory protection and is supported by recent developments in the International Tribunal for the Law of the Sea and the International Court of Justice. In particular, the article shows that human rights bodies can develop interrelationships and interdependency between rights of different normative values in different areas of international law that will lead to equitable interim measures prescribing positive obligations that are reasonable and appropriate.     

The global stocktake: design lessons for a new review and ambition mechanism in the international climate regime

International Environmental Agreements: Politics, Law and Economics - The pledge-and-review architecture of the Paris Agreement on Climate Change has been praised as a new model of global...     

水人权:人权法上的水权

离开了水,人类无法生存.因此,水人权是一项基本人权.这已经为国际法充分承认.国家有义务尽可能利用其现有资源实施水人权.尽管水人权属于经济、社会及文化权利的范畴,是国家应当采取措施逐步充分实现的人权,但国家也负有一定的立即履行的义务.然而,在国家层面上,包括我国在内的多数国家存在一个需要解决的共同问题,即缺乏系统、有效的规定和保护.     

Political biography and autobiography and the study of women in politics in Canada: The case of political ambition

This article examines the concept of women's political ambition by focusing on electoral politics in Canada. It begins with an overview of some of the key theories associated with political ambition among women and identifies several ways in which previous research indicates that patterns among women legislators may be different from those of their male counterparts. While recognising that there may be some limitations of auto/biographical works as reliable sources of information, the central idea of this article is that political auto/biography of Canadian women legislators may prove to be important resources in furthering our understanding of political ambition among women legislators. As part of this analysis, this research examines 16 auto/biographical works of women who have served in Canada's federal and provincial legislatures since the Second World War.     

The application of the medical criteria for the harm to health: expert and law-enforcement practice

This paper is devoted to the practical application of the medical criteria (MC) for the harm to health (HH) put into force on September 16, 2008. The authors undertook the analysis of procedures of forensic medical expertises for the estimation of the harm to health during the periods before and after putting MC into action (between 2007 and 2010). The results of this analysis were compared with the number of documented criminal actions that caused harm to health and the number of subjects convicted of such crimes. It is shown that the frequency of crimes leading to the serious harm to health has increased (by 22%) in parallel to the roughly similar decrease in the frequency of crimes responsible for the moderate harm. These trends are unrelated to the changes in the number of subjects convicted of such crimes. The frequency of intentional infliction of the serious harm to health decreased by 12% and the number of subjects convicted of the crimes that caused serious (Criminal Code of the Russian Federation, parts 1-3, article 111) and moderate (Criminal Code, article 112) harm to health decreased in 2010 by 5% compared with 2007. The rise in the frequency of the crimes responsible for the serious harm to health (Medical Criteria, pp. 6.11.1-6.11.11) revealed during forensic medical expertises is unrelated to the number of documented crimes and subjects convicted of them under parts 1,2, article 264 of the Criminal Code. The number of documented crimes and subjects convicted of them after the new medical criteria had been put into force (2009 and 2010) decreased by 23% and 15% respectively. It is concluded that putting into effect the new regulations and medical criteria did not result in a substantial change in the relative frequency of the serious and moderate harm to health. Nor did the law enforcement practice gives evidence of any change in the relationship between cases of moderate and serious harm to health and in the number of grave crimes causing the harm to health. The new medical criteria allowed to put in order and present in a structured fashion the data on the harm to health depending on the degree of its severity.     

The Frye hearing in Florida: an attempt to exclude scientific evidence

State Supreme Courts require a minimum threshold of reliability and acceptance in the scientific community for all medical and similar evidence to be admitted at trial. In Florida and some other states, the courts adhere to what is known as the Frye standard, whereas in most states and in Federal Courts, it is the so-called Daubert standard. The jurisdiction of the present case is Hillsborough County (Tampa), Florida. Forensic pathologists seldom, if ever, are requested to participate in such hearings, unlike their toxicological and basic science colleagues who are more involved in research methodology and technical procedures. The burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle of the test and procedures used to apply that principle to the facts of the case at hand. The trial judge has the sole discretion to determine this question and general acceptance must be established by a preponderance of the evidence. The authors describe in detail a hearing in a case in which they were all involved. One author (WQS) had researched and documented the original scientific methodology in the literature. The situation involved a car and tractor trailer crash with the two occupants of the car dying of multiple trauma, whereas the truck driver was not injured. Autopsy of the auto driver revealed multiple injuries with exsanguination, and only vitreous humor and liver tissue, but not blood, were tested for ethyl alcohol. The estate of the driver of the automobile brought suit against the owner of the trucking company for wrongful death. The plaintiff requested a Frye hearing to question the reliability of testing other body specimens to translate to probable blood alcohol level. The testimony, submitted documents, and eventual decision by the judge are discussed.     

Known semen donors: to be or not to be a parent

The law has failed to keep pace with the reality that lesbian couples are conceiving children and raising families. At both Commonwealth and State levels, a complex web of legislation engulfs and winds its way through this area of the law. This article seeks to expose some of the bizarre and anomalous consequences that have emerged through the interaction of these provisions and the resulting judicial interpretations. It is argued that this incongruous, unsatisfactory situation cannot be allowed to continue. Uniform State and Commonwealth legislation must be enacted and existing Commonwealth legislation modified to avoid ongoing inconsistencies. Finally, legislative amendments are recommended which, it is argued, will go some way towards rectifying the situation.     

The application of expert systems to the management of technology

Technology management must be improved if the US is to cope in an aggressively competitive international marketplace. It is becoming increasingly clear that investing in technologically advanced plant and equipment alone is not enough to compete successfully. To raise levels of efficiency and effectiveness in technology management, firms must develop a multi-dimensional approach to solving problems associated with manufacturing process. A way to capture scenarios for decision-making is through expert systems—programs that have wide bases of knowledge in restricted domains and utilize complex inferential reasoning to perform tasks that human beings could accomplish, but less efficiently. These systems contain a great deal of knowledge about a specific problem areas and disciplines. They also allow expertise to be distributed throughout the firms, raising competence levels and the productivity of non-experts.     

The limits to internationalization of scientific research collaboration

This study analyses international research collaboration for eight science-based technologies in the Netherlands for the period 1988–2004. It is found that the share of international research collaborations in research collaboration is high, but not rising during the period investigated. This result suggests that the process of internationalization has reached an end. It is also found that collaboration between academic and non-academic organizations is less likely to take place at the international level than collaboration between academic organizations. This suggests that collaborating within national research systems helps academia, firms and governmental organizations to overcome differences in norms, values and incentives. Nonetheless, international collaboration between academic and non-academic organizations is also frequently occurring. Some consider these collaborations as undesirable, insofar academic research funded domestically is ‘leaking’ to foreign firms in such research collaborations. Such unwanted knowledge spillovers has lead some to plea for a ‘technology-nationalism’ in science policy instead of a ‘techno-globalization’. An analysis of the ‘balance of trade’ in international collaborations between Dutch academia and foreign firms and between Dutch firms and foreign academia shows that fears for unwanted knowledge spillovers are unfounded.