从刑法理论看医疗行为的正当性根据

医疗行为从表面看似乎给人体造成一定伤害 ,但其主观目的在于治病救人 ,客观上有利于患者和社会 ,因此具有正当性。但医疗行为的正当性具有严格的条件限制。本文根据允许的危险、受害人承诺、义务冲突等刑法理论 ,对医疗行为的正当性根据作了进一步探讨。     

过失犯罪二题

行为人认识到若不采取有效措施,由于自己的过失犯罪行为所导致的法益侵害状态将会进一步恶化,而听之任之,以致某种法益遭受更严重的侵害的,转化成故意犯罪,先前的过失犯罪被吸收。过失共同犯罪的概念,在我国不应被承认,但对于其中一人的过失行为所导致的危害结果,作为行为共同体的对方,因为违反了共同的注意义务,亦因对危害结果负责。     

当前金融抢劫犯罪的新动向及打防对策

金融抢劫当前向暴力化、职业化、智能化发展,这与金融部门防范疏漏、抢支弹药管理不善、社会消极因素的诱使有必然联系;侦防金融抢劫必须做好案发前期工作、运用多种手段、强化基础工作、强化防范工作,提高刑侦队伍应付此类犯罪的能力。     

医疗事故罪中医疗行为的法律界定

本文在研究了我国台湾地区和日本刑法中的医疗行为后,认为我国刑法中医疗事故罪中的医疗行为是指对疾病的诊断、治疗、堕胎等以医学知识与医学技术为行为的准则,直接作用于人体,导致人体的形态和/或功能发生一定变化或恢复的医学行为的总称。     

Europeanising Gender Mainstreaming: Constraints and Opportunities in the Multilevel Euro-polity

What are the conditions for empowering `gender mainstreaming' as a new policy frame beyond the supranational level in member states and regions of the European Union? This paper is premised on the following assumptions: that mainstreaming will reduce gender disparities in Europe only if it takes root at all levels of decision-making, but that some national gender regimes can be expected to resist mainstreaming more than others, especially because it does not command `hard' legal tools. The puzzle to be examined is how mainstreaming can become effective across the European multilevel polity. It is argued that vis-à-visthe resistance of domestic gender regimes, the Europeanisation of equal treatment norms in national, regional and local contexts over the past decades has generated a variety of mechanisms for the cross-border diffusion of new policy ideas that can help to promote mainstreaming. Drawing on comparative Europeanisation research, this argument is developed in three steps. First, the past performance of member states in the implementation of E.U. gender directives is explored, to identify patterns and dynamics and classify leaders and laggards. Second, current mainstreaming experiences in one of the most conspicuous laggard states – Germany – are examined closely. Finally, as a means of explaining the rather intense engagement of German federal and regional governments with mainstreaming, two factors are highlighted: elite learning, and new governance instruments developed by the E.U. Notwithstanding the steps taken to promote mainstreaming, the prospects for further institutionalization within the E.U. appear contingent on the outcome of the Convention on the Future of the Union and the Intergovernmental Conference planned for 2004, since the invigorating of the subsidiarity principle and the division of competences across the multilevel polity are key issues of debate. This revised version was published online in July 2006 with corrections to the Cover Date.     

The role of the sociologist as mitigation expert in a sentencing hearing

This paper examines Louisiana’s habitual offender statute and the role of a sociologist as a mitigation expert/criminologist in a specific case. The paper includes a summary of the habitual offender statute; the literature/theories used by the sociologist in his testimony; the trial judge’s decision; and the decision of the three-judge panel of the appellant court, particularly the minority opinion. The case has been returned to the district court for re-sentencing and the trial judge is under no obligation to accept the panel’s decision; but in practice must justify any lenient sentence. The use of sociology as mitigation in criminal cases generally is discussed. The author has worked in over 300 criminal cases since 1988, most of which were capital murder, but also include second-degree murder, manslaughter, armed robbery, rape, and habitual offender hearings.     

Sexually violent predators and civil commitment: is selection evidence based?

Sexual offenses represent an alarming proportion of crimes committed yearly. To address these concerns, several states, including South Carolina (SC), have enacted laws requiring sexually violent predators (SVPs) to be civilly committed to treatment. To date, no published study has examined sexual offenders recommended for treatment in SC. This study used a specially designed statewide database (SC-SVP research database) to determine which offender and offense characteristics were associated with increased likelihood of being recommended for civil commitment. Factors correlated with being more likely to be recommended included: being of a younger age at time of evaluation, prior sex convictions, having related and unrelated victims, a higher number of victims, frequent substance use, and a history of suicide attempts. Prior sex convictions, having both related and non-related victims, and a higher total number of victims align with characteristics associated with sexual recidivism. Frequent substance abuse and a history of suicide attempts do not mirror previous findings regarding sexual recidivism. These findings present new information regarding the civil commitment process of offenders being committed to the SC-SVP treatment program, characterize types of offenders committed to SC-SVP treatment program, and provide a foundation for using a computerized database in conducting sex offender research.     

Mental Capacity Act,Anorexia Nervosa and the Choice Between Life‐Prolonging Treatment and Palliative Care: A NHS Foundation Trust v Ms X

The Court of Protection decided in A NHS Foundation Trust v Ms X that an anorexia nervosa patient lacked the capacity to refuse treatment for her eating disorder, but that it was not in her best‐interests to be subject to force‐feeding to prolong her life. The Court, vindicating previous judgments in similar cases, considered that the eating disorder rendered the patient incapable of deciding on nutrition and, therefore, that she lacked the capacity to refuse treatment for anorexia nervosa. This paper questions the narrow way in which the patient's decision was characterised by the Court in this and previous cases, which led to an application of the Mental Capacity Act 2005 that is incompatible with the UN Convention on the Rights of Persons with Disabilities because, based on a diagnosis only, anorexia nervosa patients were denied the right to decide where the balance lies between quality and duration of their own lives.     

Differences in Handwritings of Schizophrenia Patients and Examination of the Change after Treatment

The aim of this study was to analyze the differences between the handwritings of schizophrenia patients and healthy subjects in addition to the changes that occurred in schizophrenia patients' handwriting in response to the treatment. The test subjects were 29 schizophrenia patients and 29 healthy individuals with the same age, gender, and dominant hand. The changes in the handwritings were examined according to 14 different parameters. On the day of admittance, the percentage of extra letters was 16.7%, and after 7–10 days of hospitalization, it rose to 33.3%. The percentage of skipped words decreased from 29.2% to 16.7% after 7–10 days of hospitalization, and to 10% after 3 weeks. The letters written by schizophrenia patients are significantly larger in height and width compared to the control group. The schizophrenia patients showed a higher incidence of crossed-out letters, adding extra words, missing punctuation as well as missing words.