论合同违约主观状态的区分及其责任承担

合同违约的主观状态是指导致合同违约的主观原因,即合同违约行为人在主观上有无过错的心理活动状况。合同违约的主观状态,渊源于我国《合同法》确立的违约责任的归责原则。根据违约方有无过错的心理活动状况,合同违约的主观状态可以区分为故意违约、过失违约与无过错违约。合同违约主观状态的区分,对违约责任的承担、维护合同秩序、树立"诚实守信"的社会风尚均具有重要的现实意义,因此有必要予以研究和探讨。     

醉酒驾车肇事之主观归责：故意与过失的博弈

醉酒驾车肇事的行为人在主观过错上究竟属于故意还是过失？对其进行刑事归责的主观根据何在？我国大陆刑法理论上缺乏支持,实践中亦分歧明显。以原因自由行为的讨论为前提,以责任主义为立足点,分析醉酒驾车肇事行为人刑事归责的主观根据,并对现有理论和实践中可能存在的谬误认识提出合理性怀疑,包括对该类案件如何进行主观归责作出原则性分析,甚至提出“一个主观心态可以支配一个或多个连续行为”的观点,以此得出结论,对醉酒驾车肇事的行为应当以陷入醉酒状态前的主观心态为主要根据,且适当以陷入醉酒状态之后的主观心理为辅助作综合考察,从而准确确定其肇事行为的主观归责定性根据等。     

Patterns of violence and self-harm in women prisoners: characteristics,co-incidence and clinical significance

Self-harm and violence in women’s prisons in England are common and occurring with increasing frequency. We aimed to describe the characteristics and patterns of violent and/or self-harming behaviours in women in prison by conducting a retrospective analysis of routine data about self-harm incidents and adjudications. Incidence rates of self-harm and violence were calculated and associated factors explored using logistic regression. We found that only 6.7% of 5486 women prisoners self-harmed and 7.9% had been violent. Eighty per cent of all self-harm incidents related to 70 women. Almost 4 in 10 women prisoners who self-harmed were also violent. Multiple incarcerations and court movements are associated with incidents of self-harm and violence. Women with high-frequency self-harm (≥6) began self-harming early in their custodial period. We conclude that women prisoners who are very behaviourally disturbed can and should be identified early. They warrant clinical formulation and multi-agency responses to risk. Those with high-frequency self-harm should be cared for by external health services.     

Self-immolation Suicide in Greece: A Forensic Psychiatric Autopsy Study between 2011 and 2019

Self-immolation is a rare suicide method in the developed countries of the western world (0.06–1%); however, it has relatively higher prevalence rates in the developing countries of Asia and Africa (6–57%). The present study aims to examine self-immolation suicides within the Greek mainland (Attiki, Thrace, and Peloponnese) over a period of 9 years (2011–2019) in order to investigate the phenomenon in the Greek population forensically, identify the characteristics and motivations of suicide victims, explore its associations to socio-cultural or psychiatric factors, and describe a fatal case of suicide by self-immolation that was partially recorded on camera. The medical files (autopsy reports) of cases performed at the Departments of Forensic Medicine of the National and Kapodistrian University of Athens, Democritus University of Thrace, and the Forensic Service of Messinia—Peloponnese were retrospectively examined yielding 19 cases of suicides by self-immolation. A 3.7% prevalence of suicide by self-immolation among suicide fatalities within the Greek population was estimated. A distinctive feature of the Greek population regarding self-immolation was disclosed that it is being practiced predominantly by the elderly (mean age 2–3.5 decades higher than other countries). The phenomenon correlated strongly with poorly controlled mental disorders (mostly affective and adjustment disorders). Unlike other countries, there was no significant association with domestic or sexual violence, social or political protest, or religious issues. Therefore, the suicide victims preferred secluded or private outdoor locations (not public). Findings deriving from the examined variables localize Greek population culturally between the Western European and Asian African countries, but with its own idiosyncrasies.     

THE FOSTER CARE OMBUDSMAN: APPLYING AN INTERNATIONAL CONCEPT TO HELP PREVENT INSTITUTIONAL ABUSE OF AMERICA'S FOSTER YOUTH

Children today are often abused while in foster care, undermining the theoretical goal of the modern foster care system: to create a temporary, safe, homelike setting to protect and nurture children who are unable to live with their biological parents due to various reasons such as abuse, neglect, or abandonment. Often this abuse is worse than the type for which they were removed from their parents’ care in the first place. First examining the reasons why this complex problem exists, this Note recommends an internationally based, innovative concept as a partial solution: the foster care ombudsman. This Note explains the concept of an ombudsman and demonstrates how it can be particularly helpful to foster children, highlighting existing child welfare ombudsman offices in California, Rhode Island, and New Jersey, as well as international approaches. It also illustrates how a foster care ombudsman can complement class action litigation of foster care abuse claims.     

Comparing the psychological characteristics of un-apprehended firesetters and non-firesetters living in the UK

Deliberate firesetting research predominantly focuses on apprehended populations. In contrast, this paper focuses on the prevalence and characteristics of un-apprehended firesetters living in the UK. Social media was utilized to recruit 232 participants for an online questionnaire. Two hundred and twenty-five people answered a question relating to deliberate firesetting. Forty participants (17.78%) indicated that they had ignited a deliberate fire and were classified as un-apprehended firesetters. Firesetting was most common in childhood and adolescence. Relative to non-firesetters, un-apprehended deliberate firesetters were more likely to report; a diagnoses of a psychiatric illness, a diagnosis of a behavioural problem, having been suspended from school, a history of suicide attempts, experimenting with fire before the age of 10 years old, and having a family member who also ignited a deliberate fire. Un-apprehended firesetters also scored significantly higher compared to non-firesetters on the Fire Setting Scale and the Fire Proclivity Scale [Gannon, T. A., & Barrowcliffe, E. R. (2012). Firesetting in the general population: The development and validation of the Fire Setting and Fire Proclivity Scales. Legal and Criminological Psychology, 17(1), 105–122], the Fire Interest Rating Scale [Murphy, G. H., & Clare, I. C. H. (1996). Analysis of motivation in people with mild learning disabilities (mental handicap) who set fires. Psychology, Crime & Law, 2(3), 153–164], the Novaco Anger Scale and Provocation Inventory [Novaco, R. W. (2003). The Novaco Anger Scale and Provocation Inventory: NAS-PI. Los Angeles, CA: Western Psychological Services], the Boredom Proneness Scale – Short Form [Vodanovich, S. J., Wallace, J. C., & Kass, S. J. (2005). A confirmatory approach to the factor structure of the Boredom Proneness Scale: Evidence for a two-factor short form. Journal of Personality Assessment, 85(3), 295–303], and the Measure of Criminal Attitudes and Associates Scale [Mills, J. F., & Kroner, D. G. (1999). Measures of criminal attitudes and associates: User guide. Unpublished instrument and user guide].     

Understanding deliberate indifference to suicide in corrections facilities: A review of recent legal cases

The US corrections system is the largest provider of mental health care in the country. Suicide is a leading cause of death in corrections facilities with rates of inmate suicide being far higher than the national average. Suicide is an event that can lead to legal action against the facility, staff, and treating health-care providers. Some claims are based on medical malpractice. In this setting, claims may also be brought based on violations of the detainee's constitutional rights. Pretrial detainees and prisoners, alike, have a constitutional right to adequate medical and psychiatric care through the Fourteenth Amendment and Eighth Amendment, respectively. But, there is limited information on constitutional claims made against correctional health-care providers for cases of inmate suicide. To help bridge this gap, the authors conducted a search of federal legal case decisions involving claims against health-care providers for deliberate indifference to a detainee's serious illness or injury in the event of attempted suicide or death by suicide over a 5 year period from 2016 to 2021. Fifteen cases were identified. Five themes emerged from the cases, which could serve as bases for claims against health-care professionals: receiving screening, mental health assessment, treatment, documentation, and attention to facility policies. The cases and their clinical significance are summarized in this article. The materials provide an overview of the problems surrounding correctional suicides and can serve as practice pointers in the corporeal setting.     

从一起案件看盗窃罪和故意毁坏财物罪的区分

盗窃罪和故意毁坏财物罪的区分属于司法实践中的难题。要就盗窃罪和故意毁坏财物罪展开判断主要包括犯罪客观方面和主观方面两环节。而在盗取财物后又故意毁坏财物的,应该认定盗窃罪与故意毁坏财物罪均成立。     

Self‐Embedding Behavior in Adults: A Report of Two Cases and a Systematic Review

Self‐embedding behavior (SEB) is the repeated insertion of sharp objects, such as needles or pins, into the soft tissues of abdomen, limbs, and other body parts. In this study, two cases of SEB were reported and the scientific worldwide literature reviewed. Thirty‐two cases of SEB were identified through systematic searches in the main bibliographic databases. Mean age was 35 years (SD = 8.97). Just over two‐thirds of the patients were female. Although the number of embedded objects could be as high as 200, major clinical and surgical complications were uncommon and mortality was null. Patients with SEB presented three major diagnoses: psychotic (25%), personality (21.9%), and factitious (28.1%) disorders. The practice of SEB largely went undetected as the patients themselves did not bring it to the attention of family members or physicians and usually denied they have engaged in SEB. A high level of suspicion is required to avoid a missed diagnosis.