《刑法》第1条:刑法的具体概念与根本原则

刑法学应当立基于刑法的具体概念而不是抽象概念。刑法概念具体化的法条依据是《刑法》第1条。学界不把该条作为刑法的概念问题而是作为刑法概念之后的刑法根据来理解是值得商榷的。刑法概念具体化的理论进路在于找到刑法内容的两个来源,明确宪法作为两个来源及其关系之根据的意义,并全面理解刑法的两大功用。《刑法》第1条的理论地位是刑法学的基石概念,其规范地位则是刑法根本原则,可名之曰"刑法正义原则"。根本原则统摄两大基本原则:第2条的法益保护原则和第3至5条的罪刑法定原则。刑法根本原则的司法实践要讲司法逻辑,控辩审对《刑法》第1条的落实各有其功能。     

论公司法人格否认诉求主体适用范围之拓宽

我国现行《中华人民共和国公司法》（以下简称《公司法》）中规定了债权人可以作为诉求主体启动公司法人格否认制度。但在营利性与社会性并存的现代公司中,该制度尚未能满足对利益相关者的法律保护。债权人以外的其他利益相关者也可以作为诉求主体启动公司法人格否认制度。而拓宽公司法人格否认诉求主体的范围又是强化公司社会责任的最佳途径。     

论人身权侵权获益赔偿的性质、功能与适用

学界通常认为获益赔偿是损害赔偿的一种计算方法,体现的是＂填平＂理念,而《侵权责任法》第20条确定的人身权侵权获益赔偿与损害赔偿的理念不符,其功能也绝不仅仅是填平,而更多地体现了威慑、剥夺不当得利以及保护人身权支配性。获益赔偿的适用独立于损害赔偿、不当得利与不法无因管理,也不应要求被害人必须证明损害;获益赔偿应只适用于故意行为;法律应当允许在获益计算时扣除可变成本,但对扣除项目应作严格限定。     

论职业教育中"现代人"人格的培荠

这是一个强调发展、立足变革的时代。社会高速运转，不确定·性和可选择性同时增强，在这种背景下，真正的职业教育应该是着眼明天、面向未来的教育。因此，如果离开了时代精神谈人格的建构是毫无意义的，人格建构的核心应该是时代精神的完美承载。本文为职业教育中的“人格”输入了一个关键词“现代人”，并就现代人人格的概念、基本特征和培养策略等问题展开了讨论。     

Has Television Personalized Voting Behavior?

Scholars and political observers have suggested that television has “personalized” voting behavior in American presidential elections by encouraging citizens to cast ballots on the basis of candidate image and personality. Though an oft-heard assertion, little solid evidence exists that this is true, and the reinvigoration of partisanship and the persistence of ideological conflict suggest personalization may be less pervasive than supposed. In this paper, I use National Election Studies data to examine whether voters are more concerned with candidates’ personal characteristics now than they were at the outset of the television era. I find, however, that voters are no more likely today to mention candidate personality as a reason for their vote choice than they were in the 1950s and 1960s. Moreover, while personality affects voting behavior, its influence on candidate choice is not significantly larger than it was a half-century ago. The results are not contingent on exposure to television or political awareness and are insensitive to different measures of perceptions of candidate image. The findings are consistent with the resurgence of partisan voting in American elections and suggest that some concerns about TV’s effects on political judgment are exaggerated.

Managerial Tacit Knowledge,Individual Performance,and the Moderating Role of Employee Personality

This study investigates the relationship between knowledge-sharing mechanisms, managerial tacit knowledge, and individual performance in the Malaysian public sector. Moderation effects of employee personality on these variables were also examined. Findings from 308 Malaysian public sector managers suggest that individual performance is influenced by levels of accumulated managerial tacit knowledge (LAMTK), which were moderated by employee personality traits. The findings also show that individual performance has an impact on the effectiveness of knowledge-sharing mechanisms.     

Gender differences in personality and cancer-related pain among older cancer patients

Indicators explaining gender differences in personality and pain among older cancer patients have not been adequately addressed. This study examined gender differences in cancer-related pain severity, the Five Factor Model of personality, and affect among older cancer patients (86 women, 64 men). No significant differences were found in pain severity between the gender groups. Analyses indicated that women scored significantly higher for the personality trait of neuroticism than men (p < .05). Further analyses showed that different demographic, health, and personality variables predicted pain severity in women and men. Gender was found to be a significant moderator in the association between the personality trait of neuroticism and average pain. These findings suggest that both gender and different personality types may influence reported pain severity. Specifically, the results suggest that how patients experience and report pain severity may be gender-specific, and that it may be inappropriate to assume that women and men experience, report, and manage their pain in similar ways. Future studies focusing on the influence of personality and gender on health outcomes are needed to assist healthcare providers in tailoring treatment, thereby promoting optimal symptom management.     

确立公司法人人格否认制度的几点思考

伴随着公司法人制度的问世,滥用公司法人人格的现象也随之出现。当公司法人人格被明显地用于不合法目的时,法院完全可以用"诚实信用"、"权利不得滥用"等民法基本原则去矫正失衡的利益关系,给予受害人一定的救济。借鉴他国的实践,我国设立公司法人人格否认制度,也应从"诚实信用"、"权利不得滥用"等一般原则出发,通过实践最终确立公司法人人格否认制度。     

论公司人格否认制度在民事执行阶段的适用

在司法实践中已有的执行阶段适用公司人格否认制度的做法,引起很大争议。但在民事执行阶段中适用公司人格否认制度是必要的,这有利于解决“执行难”的社会问题,有利于维护社会经济的运行,有利于维护公平正义。现行立法存在着立法的空白,立法机关应当对此进行立法完善,在执行过程中适用公司人格否认,不但要起到保护公司的债权人利益的作用,也应考虑直接责任人的利益,要在两者之间寻求适当的平衡点。公司人格否认制度在执行阶段适用时,在程序上应坚持依法适用,要引入公开听证程序、赋予相关责任人要求复议的权利。     

Psychiatric and Forensic Differences Between Men Charged with Sex Offences and Men Charged with Other Offences

Studies on differences between individuals convicted of sexual offences and nonsexual offences are sparse and there is an on-going debate as to whether sexual offenders differ from other offenders. The primary aim of this study was to determine demographic characteristics, prevalence of mental disorders, alcohol and drug use at the time of the crime and the criminal responsibility of individuals charged with sexual offences, compared to nonsexual crimes, with the aim of bringing awareness to the similarities and differences between men charged with sex offences and those charged with other crimes. This is a single-institution retrospective study of subjects charged with sexual offences and sent for institutional psychiatric evaluation to a Forensic Psychiatric Centre in an urban, academic, tertiary-care center. The control group consisted of individuals charged with nonsexual offences referred to the same center. Results showed significant differences between individuals charged with sexual offences and nonsexual offences. Men charged with sex offences more frequently committed their crimes alone and victimized children equally as often as adults. They also less frequently pleaded guilty in court. They were more likely to be abused in childhood and more often had antisocial personality disorder and paraphilias and less often substance-related disorders. The majority were considered criminally responsible. Our results show that sex offenders are different from nonsex offenders in many characteristics of their personal history, offence characteristics and forensic evaluations and these particular differences warrant different approaches to the prevention of future re-offending, compared to nonsex offenders.