刑法中的消极义务与积极义务：对刑法管辖权根据的思考

将犯罪视为法益侵害的一般理论对社会规范结构的理解过于肤浅,这种理论既无法把握积极履行的义务,又无法为刑法区分作为与不作为的义务提供根据,而且在价值上也毫无意义。作为一种保证人义务,每个人的组织领域必须保证交往的安全,因此保证人地位的预设不仅是不作为,而且还是作为。消极义务是每个人的义务,它可以通过作为来实现,也可以通过不作为来违反,这与义务人组织自己的组织领域有关。积极义务旨在用其他组织领域的成就来弥补另一个组织领域的不足,尽管该义务只影响负有特殊义务的人;但由于其属于重要意义的协助义务,任何人都可能参与该义务的违反。在负有特殊义务的人非但没有协助受益人,甚至还干扰了受益人的组织领域的场合,违反积极义务可能与违反消极义务同时发生。     

Collaborative school planning and active schools: a case study of Lee County, Florida

To contribute to the understanding of the links between urban planning and school siting and, ultimately, the impact of both on physical activity, we conducted a case study of Lee County, Florida. Our study examined the extent of state-mandated collaboration between the Lee County School Board and Lee County government (e.g., the Lee County Department of Planning, the Office of Smart Growth, and the Department of Parks and Recreation). Specifically, we investigated planning processes under mandated coordination between the school board and the county and the impact of such coordination on the integration of land-use planning and school facility planning. By describing the process of mandated collaborative school planning in Florida, we illustrate the promise and pitfalls of such top-down legislation and offer insights to other state and local governments looking for ways to improve local planning and to increase physical activity among children.     

Pig-mentation: postmortem iris color change in the eyes of Sus scrofa

Experienced forensic pathologists and examiners may be familiar with the phenomenon of postmortem iris color change; however, only Knight, Simpson's forensic medicine, Arnold, London, 1997; Ref. 1 and Saukko and Knight, Knight's forensic pathology, 3rd ed., Arnold, London, 2004; Ref. 2 have referred to it in the literature, and to date, there have been no published scientific research studies on this taphonomic artifact. A controlled experiment was conducted of postmortem changes to isolated Sus scrofa eyes. The eyes (n = 137) were separated into three groups and each sample was observed for 3-day postmortem at a different temperature. In addition, a Sus scrofa head was obtained to observe postmortem changes of eyes in situ. All isolated blue eyes in the experiment, at room temperature and higher, changed to brown/black within 48 h. The in situ blue eye, at room temperature, turned brown/black within 72 h. If iris color consistently changes postmortem in humans, then this taphonomic artifact must be incorporated into victim identification protocol, including disaster victim identification software, and autopsy reports to prevent inaccurate victim identification and inappropriate exclusion from the identification process.     

Ethyl glucuronide: unusual distribution between head hair and pubic hair

Ethyl glucuronide (EtG) is a minor metabolite of ethanol that can be detected in hair. In some specific situations, head hair can be missing, and therefore, alternative anatomical locations of hair are of interest. In this study, paired hair specimens (head hair and pubic hair) from eight social drinkers were analyzed for EtG. Each sample was decontaminated by two dichloromethane bathes (5 ml) for 2 min. After cutting into small pieces, about 50 mg of hair was incubated in 2 ml water in the presence of 10 ng of EtG-d5, used as internal standard and submitted to ultra-sonication for 2 h. The aqueous phase was extracted by SPE using Oasis MAX columns. The hair extract was separated on an ACQUITY BEH HILIC column using a gradient of acetonitrile and formate buffer. Detection was based on two daughter ions: transitions m/z 221-85 and 75 and m/z 226-75 for EtG and the IS, respectively. This laboratory is using a positive cut-off at 50 pg/mg. All eight head hair specimens were negative for EtG at a limit of quantitation fixed at 10 pg/mg. Surprisingly, EtG was identified at high concentrations in pubic hair, in the range 12-1370 pg/mg. It appears, therefore, that it is not possible to document the drinking status of a subject by simply switching from head hair to pubic hair.     

Hair analysis to document non-fatal pesticide intoxication cases

We reported two non-fatal cases of intoxication with pesticides namely alachlor and carbofuran. Hair stand samples were collected from two men approximately 1 year after alachlor intoxication for case 1, and 14 days after the last exposure for case 2. Hair analysis was performed using a liquid chromatography-tandem mass spectrometry method. In case 1, alachlor was detected in the 5 analysed hair segments (concentrations between 12 and 136 pg/mg) and its metabolites were not detected. In case 2, carbofuran and its main metabolite (3-hydroxycarbofuran) were detected in the hair strand (global analysis) at the concentrations of 207 and 164 pg/mg, respectively. However, additional data are required in order to interpret such results.     

The relationship between serial sexual murder and autoerotic asphyxiation

This case series documents and examines the association between autoerotic asphyxiation, sadomasochism, and serial sexual murderers. Autoerotic asphyxiation, along with other paraphilias found in this population, is reviewed. Five cases of serial sexual killers who engaged in autoerotic asphyxiation were identified worldwide: four from the United States and one from Russia. Case reports for each are provided. All (100%) were found to have sexual sadism in addition to autoerotic asphyxiation. Furthermore, two (40%) had bondage fetishism, and two (40%) had transvestic fetishism, consistent with these paraphilias co-occurring in those with autoerotic asphyxiation. Overall the group averaged 4.0 lifetime paraphilias. Some possible relationships were observed between the offenders' paraphilic orientation and their modus operandi, e.g., all of these serial killers strangled victims-suggesting an association between their sadistic and asphyxiative paraphilic interests. The overlap of seemingly polar opposite paraphilias in this sample--sexual sadism and autoerotic asphyxiation--is explored from a historical and clinical perspective. Multiple commonalities shared between these five offenders and serial sexual murderers in general are addressed. A primary limitation of this study is its small sample size and empirical basis; the results may not be generalizable beyond the sample. The findings from this study support the supposition that crime scene behaviors often reflect paraphilic disturbances in those who commit serial sexual homicides.     

坚决捍卫宪法法律尊严 严厉打击暴力恐怖犯罪

人民生命至高无上．维护人民生命安全是宪法和法律的基本原则。暴力恐怖分子的暴行。是对基本人权的严重践踏．是对宪法和法律尊严的严重破坏,是对文明秩序的严重挑战。     

阿尔夫·罗斯的权能概念

丹麦法哲学家阿尔夫·罗斯认为,权能乃是一种在法律上得到证立的,通过并依据对相关效果的宣示,从而创制法律规范(或者法律效果)的能力。就此而言,权能在本性上具有可能性、规范性、处分性、表示性;权能规范属于构成性规则;权能的理由是基于私人以及公共领域的自治。但富有争议的是,根据以其命名的罗斯化约定理,所有其他规范性概念都能够被化约为义务概念;又由于权能规范规定了创制义务规范的程序,并使得主体负有义务根据该义务规范而行动,因而权能规范也可被化约为义务规范。然而,通过否定化、关系化、潜能化三项逻辑运算可以得出,虽然权能蕴含着潜在的义务,但是反之并不成立。义务不仅能通过权能的行使,也能通过其他行为,譬如不法或犯罪行为,得到证立。布列金由此认为,罗斯在后期从根本上改变了化约主义立场。但是,权能规范仍然可以被理解为合秩序性创制的行为规范之行为规范,具有元规则地位;只不过创制行为所体现的私人以及公共自治具有不可化约性。在此意义上,罗斯化约定理的核心部分仍然是真实的,他关于权能的立场也是一以贯之的。