论法律原则的司法适用——从规范性法学方法论角度的一个分析

法律原则之把握,与其给以界说,毋宁探究其适用;而在司法实践中,法律原则的适用大凡有四种情形第一,原则与规则一致情形下,原则作为规则的基础和指引。第二,规则缺位的情形下,适用原则以作漏洞补充。第三,原则与规则相冲突的情形下,适用原则创制规则的例外。第四,原则之间相互冲突情形下的特别复杂的适用。四种情形也可能在结构上交叉耦合,其中第一种情形已为人熟知,而其他情形,尤其是三、四两种则有待深究。本文即力图从规范性法学方法论的纵深角度,探讨法律原则之司法适用的逻辑结构。

The Conflict between Patient Autonomy and the Dying Patient Law in Israel

The Dying Patient Law is very controversial in Israel; there are opinions that the reason for the Law was to prevent the court from making decisions on the subject of end of life according to democratic principles. I decided to do this study because I wanted to know if the legal principles of the Law are democratic as were the court rulings or they are only, or mostly, Jewish principles and meant to prevent a democratic ruling in the courts. The work is a review of the Law and the Dying Patient Committee discussions as well as the chairman＇s writings on the Law, critique articles, and a review of democratic and bioethical principles. In this project, I have seen that the underlying basis of the Dying Patient Law is Jewish principles and not democratic principles, although Israel is a declared democratic state. This law illustrates the problem in Israel being both a democratic and a Jewish state. It raises the question： What can be done to resolve the conflict between the Jewish principles and democratic and/or bioethical principles？

Seeing Rape as Rape： Philosophical and Historical Perspectives on Marriage Law

In this paper, I critically challenge the ability of legal reforms to recognize and integrate the way in which a rape victim sees rape. Current limitations to the law are mainly due to the accepted patriarchal view on law as a form of objective and rational knowledge, outside which there are only impracticable and irrational views. I investigate the case of marriage jurisprudence in the UK, as a prominent example, because it has long accepted marital rape as objectively and rationally part of a wife＇s duty. Even though changes have occurred which improve the marital rape jurisdiction and prejudicial disbelief concerning a woman＇s private life is still used in the courts to question the credibility of the victim. Over the past year, extensive efforts have been made to reform the management of rape cases. Whilst there is a need to acknowledge the seriousness of the accusation with rigorous legal principles which provide appropriate safeguards for the accused person as well as the complainant, especially bearing in mind the often ＂private＂ circumstances, with a concomitant lack of witnesses, it remains the case that the rate of attribution in attempts to secure successful prosecutions in rape case remains overwhelming. I show how a Wittgensteinian approach to law would take into consideration the shape ofgendered lives as they are experienced, and hence would not accept just one legal interpretation of marital law. The phenomenon of＂seeing-as＂ in Wittgenstein＇s philosophy can support the experience of being jolted into appreciating the feminist aspect of consent in marital sexual relationships.

A Study on the Legal Sources and Principles of Consumer Cooling-off Period System

In October 25, 2013, the Standing Committee of the National People＇s Congress made a decision on revising the ＂consumer rights protection law＂ of PRC. The new revised ＂Chinese Consumer Protection Law＂ China consumers will take consumer cooling-off period system as an important consumer right.2 Because it is a new system different from traditional civil law ＂principle of obeying compacts＂ , and the theoretical research on the calm period by scholars is still not mature enough. This paper discusses the consumer cooling off period from the theoretical perspective, and its legal origin, and puts forward and demonstrates legal principles and the legal basis the cooling off period system should follow.

Challenges and Strategies for Courtroom Interpreter： A Case Study

Courtroom interpreting has now attracted more attentions due to the fast growth of interpreting as a profession and the development of globalization. Courtroom interpreting is different from other interpreting modes in that it involves both legal knowledge and interpreting capability. Misinterpreting in courtroom can pose a threat to the human rights and sometimes can be a matter of life and death. This paper discusses some common challenges faced by courtroom interpreters and proposes coping tactics guided by ethical principles

Talk about the necessity and realistic significance of the separation between the financial accounting and tax accounting

The tax accounting and financial accounting＇ s different target, different legal basis, different accounting principles as well as the different time of recognition between incomes and expenses will result in significant differences between accounting income and taxable income. We think that drawing on the experience of the United States and other countries to establish the specialized accounting theory and methods, the implementation of tax accounting and financial accounting separation is an inevitable requirement. Whether the financial accounting and tax accounting should be separated, of which the key lies in the degree of difference and coordinability between accounting income and taxable income. We believe that from our tax system, financial system and the history and current status of the development of accounting systems perspective, it do not exist realistic necessity of the separation between the tax accounting and the financial accounting.

Invariance principles for the law of the iterated logarithm under G-framework

We obtain a general invariance principle of G-Brownian motion for the law of the iterated logarithm(LIL for short). For continuous bounded independent and identically distributed random variables in G-expectation space, we also give an invariance principle for LIL. In some sense, this result is an extension of the classical Strassen's invariance principle to the case where probability measure is no longer additive. Furthermore,we give some examples as applications.