“良法”与“恶法”之思辨

西方社会自然法学派与分析法学派围绕法的道德性及“恶法”是不是法的问题有过激烈的讨论。自然法学派坚持“良法”观 ,提出“恶法非法” ,而分析法学派坚持“恶法”观 ,提出“恶法亦法” ,这与它们所处历史和文化的具体环境有关。社会主义国家在法律制定过程中 ,要体现自然法的理性 ,尽量使法的制定达到“良法”的层面 ,当前 ,在执法与守法的过程中 ,则应遵循分析法学派的理论 ,按“恶法亦法”的观点 ,不管是“良法”、“恶法”都要一律遵从 ,以树立法律权威。

超越“恶法非法”与“恶法亦法”——法律与道德关系的本体分析

道德与法律的关系是法理学史上至今没有定论的难题。自然法学认为二者存在必然联系,因此主张"恶法非法";分析实证主义法学认为二者无必然联系,因此主张"恶法亦法"。两家各有其片面性。道德与法律属于社会规范的范畴,共性在于它们都是关于社会行为应该如何的道德价值,道德是道德价值的道德表现形式,法律是道德价值的法律表现形式;区别主要在于法律有国家权力保障而道德则没有。道德与法律在社会中是一种交叉关系,既有相同的规则也有不同的规则,因此就会出现合法不合理或合理不合法的两难情形。在传统人治时代,由于二者都没有权威,对该问题的处理最终取决于统治者的意志;而在现代法治国家,法律具有至高地位,则应当在法律体制内解决该问题。

“恶法非法”传统在当代中国法治中的养成:阻却因素与实现进路

"恶法非法"传统在中国社会的养成是法治实现的前提和基础。小农经济是阻却"恶法非法"传统产生的直接根源;欠发达的市民社会是阻却"恶法非法"传统发展的社会动因;儒家文化是阻却"恶法非法"传统生成的文化因素。在这些经济、社会、文化的因素阻却中",恶法非法"传统在当代中国法治中的养成可以从如下路径推进:从制定法律上防止恶法产生;从法律的实施上良法得以实行;从法治理念上法律被民众信仰;从救济机制上对"恶法"的危害及时矫正。

寻找恶法

法律有良法与恶法之分，正如人有好坏之别一样，恶法对人类和社会的危害是巨大的，自古以来恶法便是人民的公敌，社会前进的绊脚石，法律发展的历史其实也是一些恶法被逐步废除的历史。

“恶法非法”与“恶法亦法”之思辨

"恶法非法"与"恶法亦法"一直是法学理论界争论不休的问题。自然法学派认为道德和法律存在必然的联系,因而主张"恶法非法";分析实证主义法学派系认为道德和法律没有必然的联系,因而主张"恶法亦法"。从表面来看,两种学说的对立达到了极致。然而,如果我们换个角度深入分析,两者并不矛盾,甚至存在理论的契合性。真正的良善之法,不仅要符合道德的要求而内容良善,而且要具备法律的外在形式。在现代文明的法治国家,出现合法不合理或者合理不合法的两难情形时,应当坚持宪法法律至上,在法律允许的范围内衡平个案争议。同时,对不合理的法律适时修、改、废,使其成为真正的良善之法。

对“恶法亦法”的分析与辩驳——基于富勒《法律的道德性》

"怨毒告密者难题"引发了自然法学与分析实证法学之间关于恶法是否为法的争论。富勒在其著作《法律的道德性》中提出了两组概念,即义务道德与愿望道德、内在道德与外在道德。厘清这两组概念之间的关系,进而分析"道德"是否内在于法律,为辩驳分析实证主义关于法律是"邪恶"的,以致人们不去遵守,以及创制一个溯及既往型的法律去宣示原有法律非法性的两个观点奠定了理论基础。同时,富勒所提出的法律内在道德,对现代中国法治建设过程中立法技术、立法程序、法律适用等方面的改进都有着重要的借鉴意义。

《救助办法》告别“恶法恶治”

《城市生活无着的流浪人员救助管理办法》已经于2003年6月20日颁布,与1982年颁布的《城市流浪乞讨人员收容遣送办法》相比,从收容到救助,无疑是一个进步。那么,我们该如何理解这部救助弱势群体的条例?这部条例还有哪些不完善之处?日前,本刊记者采访了著名法学家、国家行政学院杜钢建教授。

改革·立法·合宪性——“良性违宪论”的法理分析

“良性违宪”的确是个“不争的事实”，但由此不能推出“良性违宪”应予肯定。否定“恶法”须极其慎重，否则比无“良法”更糟。宪法的局限性无须以违宪的代价来克服。特区“特”在“用足”法律，“用足”授权。“良性违宪”是行使“抵抗权”或“温柔抵抗”的提法缺乏法理依据。“良性违宪”与“要把改革和发展的重大决策同立法结合起来”的宪制改革精神不符，是当前“执法不严”相当突出的重要成因之一。依法治国的核心是依宪治国，改革应具有合宪性。防范“良性违宪”

“洞穴奇案”的法理思考

彼得·萨伯在所著的《洞穴奇案》一书中,讲述了14位法官在面对同一个案件时,由于秉持不同的法哲思想,给出了14份迥然不同的判决书。其中6份有罪判决、6份无罪判决,还有2名法官拒绝裁判,最高法院最终没有形成真正的判决意见,维持了原判。对"洞穴奇案"中各方争议焦点进行法理视域下的分析,认为应作出有罪判决。

Primary Lymphoma of Respiratory System (A Report of 11 Cases)

Objective: To analyze the clinical and pathologic features and the treatmentoutcomes of primary lymphoma of respiratory system (PLRS). Methods: The clinical manifestation,imaging changes, pathologic subtypes, treatment and overall survival of 11 patients with PLRS wereanalyzed retrospectively. Results: Of the 11 patients diagnosed with PLRS by histopathology, thetumor of 2 patients occurred in trachea and the other 9 in lung. Cough, dyspnea and fever were themost frequent symptoms. Mass or infiltrative changes could be found on the chest X-ray and/or CTscan. Two patients were diagnosed as having Hodgkin's Lymphoma (HL) and 9 having non-Hodgkin'sLymphoma (NHL), including 7 patients with low degree NHL [5 of them (55.6%) were mucosa-associatedlymphoid tissue (MALT) lymphoma] and 2 with intermediate degree NHL. Of 10 patients undergoingexploratory thoracotomy and surgical treatment, 8 received adjuvant chemotherapy and 2 adjuvant ofradiotherapy. The remaining patient was subjected to combined chemotherapy. Both of HL patientssurvived more than 5 years without clinical disease. The median survival of MALT lymphoma and othertype of NHL was 39 months and 34 months respectively. Conclusion: Both the clinical manifestationand imaging changes are non-specific. The diagnosis was made through exploratory thoracotomy (10cases) and fiber-optical bronchoscopy (1 case). MALT lymphoma is the most frequent pathologicsubtype. Majority of patients are diagnosed and treated by surgical resection. The prognosis isacceptable.

Evaluation of quantitative contrast harmonic imaging to assess malignancy of liver tumors:A prospective controlled two-center study

AIM: To establish the extent to which contrast enhancement with SonoVue in combination with quantitative evaluation of contrast-medium dynamics facilitates the detection of hepatic tumors. METHODS: One hundred patients with histologically confirmed malignant or benign hepatic tumor (maximum size 5 cm) were analyzed. Contrast-enhanced ultrasound (bolus injection 2.5 mL SonoVue) was carried out with intermittent breath-holding technique using a multifrequency transducer (2.5-4 MHz). Native vascularization was analyzed with power Doppler. The contrast-enhanced dynamic ultrasound investigation was carried out with contrast harmonic imaging in true detection mode during the arterial,portal venous and late phases. Mechanical index was set at 0.15. Perfusion analysis was performed by post-processing of the raw data time intensity curve (TIC) analysis. The cut-off of the gray value differences between tumor and normal liver tissue was established using Receiver Operating Characteristic (ROC) analysis 64-line multi-slice computed tomography served as reference method in all cases. Magnetic resonance tomography was used additionally in 19 cases. RESULTS: One hundred patients with 59 malignant (43 colon,5 breast,2 endocrine metastases,7 hepatocellular carcinomas and 2 kidney cancers) and 41 benign (15 hemangiomas,7 focal nodular hyperplasias,5 complicated cysts,2 abscesses and 12 circumscribed fatty changes) tumors were included. The late venous phase proved to be the most sensitive for classification of the tumor type. Fifty-eight of the 59 malignant tumors were classified as true positive,and one as false negative. This resulted in a sensitivity of 98.3%. Of the 41 benign tumors,37 were classified as true negative and 4 as false negative,which corresponds to a specificity of 90.2%. Altogether,95.0% of the diagnoses were classified as correct on the basis of the histological classification. No investigator-dependency (P = 0.23) was noted. CONCLUSION: The results show the possibility of accurate prediction of malignancy of hepatic tumors with a positive prognostic value of 93.5% using advanced contrast-enhanced ultrasound. Contrast enhancement with SonoVue in combination with quantitative evaluation of contrast-medium dynamics is a valuable tool to discriminate hepatic tumors.

Intraductal neoplasm of the intrahepatic bile duct: Clinicopathological study of 24 cases

AIM: To investigate the clinicopathological features of intraductal neoplasm of the intrahepatic bile duct (INihB). METHODS: Clinicopathological features of 24 cases of INihB, which were previously diagnosed as biliary papillomatosis or intraductal growth of intrahepatic biliary neoplasm, were reviewed. Mucin immunohistochemistry was performed for mucin (MUC)1, MUC2, MUC5AC and MUC6. Ki-67, P53 and β-catenin immunoreactivity were also examined. We categorized each tumor as adenoma (low grade), borderline (intermediate grade), and malignant (carcinoma in situ , high grade including tumors with microinvasion). RESULTS: Among 24 cases of INihB, we identified 24 tumors. Twenty of 24 tumors (83%) were composed of a papillary structure; the same feature observed in intraductal papillary neoplasm of the bile duct (IPNB). In contrast, the remaining four tumors (17%) showed both tubular and papillary structures. In three of the four tumors (75%), macroscopic mucin secretion was limited but microscopic intracellular mucin was evident. Histologically, 16 tumors (67%) were malignant, three (12%) were borderline, and five (21%) were adenoma. Microinvasion was found in four cases (17%). Immunohistochemical analysis revealed that MUC1 was not expressed in the borderline/adenoma group but was expressed only in malignant lesions (P = 0.0095). Ki-67 labeling index (LI) was significantly higher in the malignant group than in the borderline/adenoma group (22.2 ± 15.5 vs 7.5 ± 6.3, P < 0.01). In the 16 malignant cases, expression of MUC5AC showed borderline significant association with high Ki-67 LI (P = 0.0622). Nuclear expression of β-catenin was observed in two (8%) of the 24 tumors, and these two tumors also showed MUC1 expression. P53 was negative in all tumors. CONCLUSION: Some cases of INihB have a tubular structure, and are subcategorized as IPNB with tubular structure. MUC1 expression in INihB correlates positively with degree of malignancy.

Adipokines and ghrelin in gastric cancer cachexia

AIM:To investigate the roles of the adipocytokines,ghrelin and leptin in gastric cancer cachexia. METHODS:Resistin,ghrelin,leptin,adiponectin,insulin and insulin-like growth factor(IGF-Ⅰ),were measured in 30 healthy subjects,and 60 gastric cancer patients of which 30 suffered from cancer-induced cachexia and 30 served as a control group. The relationships between hormones,body mass index(BMI) loss ratio,age,gender,and Glasgow Prognostic Score(GPS) were investigated. RESULTS:Cachexia patients had higher tumor stage and GPS when compared with non-cachexia patients(P < 0.05). Ghrelin,resistin,leptin,adiponectin and IGF-Ⅰ,showed a significant correlation with BMI loss ratio and GPS(P < 0.05). A strong correlation was seen between GPS and BMI loss(R = -0.570,P < 0.0001). Multivariate analysis indicated that BMI loss was significantly independent as a predictor of ghrelin,resistin,leptin and IGF-Ⅰ(P < 0.05). Existence of an important significant relationship between resistin and insulin resistance was also noted. CONCLUSION:These results showed that serum ghrelin,leptin,adiponectin,and IGF-Ⅰ play important roles in cachexia-related gastric cancers. No relationshipwas found between resistin and cancer cachexia. Also,because of the correlation between these parameters and GPS,these parameters might be used as a predictor factor.

Current endoscopic approach to indeterminate biliary strictures

Biliary strictures are considered indeterminate when basic work-up, including transabdominal imaging and endoscopic retrograde cholangiopancreatography with routine cytologic brushing, are non-diagnostic. Indeterminate biliary strictures can easily be mischaracterized which may dramatically affect patient's outcome. Early and accurate diagnosis of malignancy impacts not only a patient's candidacy for surgery, but also potential timely targeted chemotherapies. A significant portion of patients with indeterminate biliary strictures have benign disease and accurate diagnosis is, thus, paramount to avoid unnecessary surgery. Current sampling strategies have suboptimal accuracy for the diagnosis of malignancy. Emerging data on other diagnostic modalities, such as ancillary cytology techniques, single operator cholangioscopy, and endoscopic ultrasonography-guided fine needle aspiration, revealed promising results with much improved sensitivity.

Study on vasculogenic mimicry in malignant esophageal stromal tumors

AIM: To investigate whether malignant esophageal stromal tumors contain PAS-positive patterned matrix-associated vascular channels, which are lined by tumor cells, but not vascular endothelial cells. That is vasculogenic mimicry (VM) independent of tumor angiogenesis. METHODS: Thirty-six tissue samples of malignant esophageal stromal tumors were analyzed. Tissue sections were stained for Vascular endothelial growth factor (VEGF), CD31 and periodic acid Schiff (PAS). The level of VEGF, the microvascular density (MVD) and the vasculogenic mimicry density (VMD) were determined. RESULTS: PAS-positive patterned matrix-associated vascular channels were detected in 33.3% (12/36) of tumor samples. Within these patterned channels, red blood cells were found. The level of VEGF and the MVD in tumors containing patterned channels were significantly higher than those in tumors not containing patterned channels (P < 0.05). At the same time, the malignant degree of tumors was higher, the proportions of tumors containing patterned channels were not only more, but also in the each kind of tumors containing patterned channels. CONCLUSION: In malignant esophageal stromal tumors, a VM mechanism causes some tumor cells to deform themselves and secrete extracellular matrix; thus, PAS-positive patterned matrix-associated vascular channels appear and supplying blood to the tumors to sustain their growth and metastasis.

Difficulty with diagnosis of malignant pancreatic neoplasms coexisting with chronic pancreatitis

Chronic pancreatitis is a relatively common disease. We encountered two different cases of belatedly demonstrated pancreatic carcinoma featuring underlying chronic pancreatitis. The first case was one that was highly suspected as that of a malignancy based upon imaging study, but unfortunately, it could not be confirmed by intra-operative cytology at that time. Following this, the surgeon elected to perform only conservative bypass surgery for obstructive biliary complication. Peritoneal carcinomatosis was later noted and the patient finally died. The second case, a malignant mucinous neoplasm,was falsely diagnosed as a pseudocyst, based upon the lesion's sonographic appearance and associated elevated serum amylase levels. After suffering repeated hemoptysis,the patient was found to exhibit lung metastasis and peritoneal seeding. We reviewed some of the literature,including those studies discussing chronic pancreatitis predisposing to a malignant change. These two case analyses illustrate clearly that the diagnosis for such conditions, which is simply based upon imagery or pathological considerations may end up being one of a mistaken malignancy. Some of our suggestions for the treatment of such malignancies as revealed herein include,total pancreatomy for univocal mass lesion, and needle aspiration of lesion-contained tissue for amylase, CA199and CEA levels for a suspicious cystic pancreatic mass.

Perigastric extraskeletal Ewing's sarcoma: A case report

Ewing's sarcoma (ES) is a neoplasm of undifferentiated small round cells, which occurs in the bones and deep soft tissues of children and adolescents. We present a rare case of a 44-year-old woman with gastric ES presenting with epigastric pain and weight loss. Ultrasound and computed tomography scans indicated a solid/cystic mass in the pancreatic tail. At laparotomy, the tumor was found attached to the posterior surface of the stomach, completely free from the pancreas, with no lymphadenopathy or local metastases. The polynodal, partly pseudocystic, dark-red soft tumor was excised. Histopathology revealed an anaplastic small-round-cell tumor with strong membranous CD99 immunoexpression. Additionally, there was patchy immunostaining for S-100 protein, vimentin, protein gene product (PGP) 9.5 and neuron-specifi c enolase, and weak focal CD117 cytoplasmic immunoreactivity. The patient had no adjuvant chemotherapy; her postoperative recovery was uneventful, and she remains symptom-free, and without any sign of recurrence at 20 mo. To the best of our knowledge, this is only the third ever case of gastric ES.

Value of CT-guided core-needle biopsy in diagnosis and classification of malignant lymphomas using automated biopsy gun

AIM: To evaluate the value of CT-guided core-needle biopsy in diagnosis and classification of malignant lymphomas.METHODS: From January 1999 to October 2004, CT-guided core-needle biopsies were performed in 80 patients with suspected malignant lymphoma. Biopsies were performed with an 18-20 G biopsy-cut (CR Bard, Inc., Covington, GA,USA) needle driven by a spring-loaded Bard biopsy gun.RESULTS: A definite diagnosis and accurate histological subtype were obtained in 61 patients with a success rate of 76.25% (61/80). Surgical sampling was performed in 19 patients (23.75%) with non-diagnostic core-needle biopsies. The success rate of CT-guided core-needle biopsy varied with the histopathologic subtypes in our group.The relatively high success rates of core-needle biopsy were noted in diffuse large B-cell non-Hodgkin's lymphoma (NHL, 88.89%) and peripheral T-cell NHL (90%). However,the success rates were relatively low in anaplastic large cell (T/null cell) lymphoma (ALCL, 44.44%) and Hodgkin's disease (HD, 28.57%) in our group.CONCLUSION: CT-guided core-needle biopsy is a reliable means of diagnosing and classifying malignant lymphomas,and can be widely applied in the management of patients with suspected malignant lymphoma.

Cytoreductive surgery in primary advanced epithelial ovarian cancer

Epithelial ovarian cancer is one of the most common malignancy and one of the principal causes of death among gynaecological neoplasm. The majority of patients(about 70%) present with an advanced International Federation of Gynaecology and Obstetrics stage disease. The current standard treatment for these patients consists of complete cytoreduction and combined systemic chemotherapy(CT). An increasing proportion of patients undergoing complete cytoreduction to no gross residual disease(RD) is associated with progressively longer overall survival. As a counterpart, some authors hypothesized the improving in survival could be due more to a less diffused initial disease than to an increase in surgical cytoreduction rate. Moreover the biology of the tumor plays an important role in survival benefi t of surgery. It's still undefi ned how the intrinsic features of the tumor make intra-abdominal implants easier to remove.Adjuvant and hyperthermic intraperitoneal CT could play a decisive role in the coming years as the completeness of macroscopic disease removal increases with advances in surgical techniques and technology. The introduction of neo-adjuvant CT moreover will play a decisive role in the next years Anyway cytoreduction with no macroscopic residual of disease should always be attempted. However the defi nition of RD is not universal. A unique and defi nitive defi nition is needed.

Healing Is Believing： Yeon Gaesomun and Xue Rengui in the Making of Mid-Seventh-Century Tang-Goguryeo War Narratives

This paper examines how historical narratives and fictional narratives treat China＇s loss in Tang-Goguryeo War differently to heal China＇s damaged pride. Emperor Tang Taizong （599-649） invaded Goguryeo in 645 but failed to conquer her because of severe weather and strong resistance led by Yeon Gaesomun （603-666）. This paper argues that official histories including Jiu Tangshu （Old Book of Tang） and Xin Tangshu （New Book of Tang） focus on Emperor Tang Taizhong＇s legitimacy to invade Goguryeo because Yeon Gaesomun＇s coup d＇etat overthrew Yeongnyu-wang. These two histories also pay extra attention to Yeon Gaesomun＇s negative characters. Novels about Tang-Goguryeo War including Xue Rengui zheng Liao shi lue （薛仁贵徵辽事略）, Tang shu zhi zhuan tong su yan yi （唐书志传通俗演义）, and Shuo Tang hou zhuan （说唐后传） take a different approach to heal China＇s wounded pride. Instead of focusing on diplomatic and military legitimacy, these stories blur China＇s loss by creating a national hero Xue Rengui whose military skills, loyalty to Tang Dynasty, and dauntless rescue of Emperor Tang Taizong were constantly emphasized.