“有意”与“故意”的语义语用差异

“有意”与“故意”是一组意义相近的词语,两者有时可以互相释义,有时它们又有各自的语义与用法,不可以互换。从语义和语用角度探讨二者之差异,并尝试从词汇化、语法化角度解释其同中有异的原因。

权衡于道德和法律之间——从一起宣告无罪的“故意杀人”案件看法律推理

在公诉案件中,公诉机关事实上也参与法律推理。在需要进行实质法律推理的场合,公诉意见与审判意见的分歧往往体现着法律推理前提的对立。以刑法基本原则作为法律推理的前提,不会导致道德在审理过程中代替法律。法官应尽量立足事实进行法律推理,以实现合法、合理、合情的统一。

美国“故意无视”标准在我国专利侵权主观过错中的定位

2011年美国联邦最高法院在Glob.-Tech Appliances,Inc.v.SEB S.A.〔1〕一案中确立了"故意无视"(willful blindness)原则,认为在专利间接侵权中,即使引诱人没有实际知道直接侵权行为,但是已经认识到直接侵权行为的高度可能性,而且通过自己的积极行为避免自己实际知道,那么仍然要承担引诱侵权责任。在传统引诱侵权中,一般要求引诱人故意(直接故意或间接故意)引诱直接侵权人才会构成引诱侵权责任,而故意要求引诱人实际知道直接侵权行为。在本案中,法院认为,即使被告没有明知直接侵权行为,但是其行为的应惩罚性与故意引诱并无区别,仍应构成引诱侵权。我国在专利间接侵权领域主要依据《侵权责任法》,"故意无视"的情况在我国应当被视为间接故意,在我国侵权法体系下,行为人依然要承担专利教唆侵权责任。

“故意之怀疑”与“疑古要慎重”的辩证法——梁启超学术研究中的怀疑精神

对怀疑精神的论述是梁启超现代学术思想的重要内涵。他主张"故意之怀疑",即面对成说、旧说,要敢于怀疑,不应轻易盲从。同时又主张"疑古要慎重",避免"矫枉过正"。梁启超对怀疑精神的倡导是现代学术史上的一笔宝贵财富,对于当今的学术研究仍然具有重要的启示意义。

人身保险事故中“故意性”的证明责任研究

人身保险,是以人的寿命和身体作为标的,在发生承保事故时,由保险人承担保险责任,给付保险金的保险类型。人身保险事故中当事人取得保险金的流程一般如下:发生保险事故——通知保险人——保险人进行核定。我国保险法第二十一条、二十二条规定了保险金的申请人在事故发生后有通知和提供资料的义务,资料应该是证明保险事故的性质、原因的材料。同时第二十四条规定了保险人的拒赔权利,基于此保险人可以依据保险事故的“故意性”拒绝赔付。在保险人和保险金申请人都对保险事故的“故意性”负有主观举证责任,且我国相关法律并未对故意免责的证明责任做相关规定时,由此在司法实务中引发审判人员对该问题的处理意见亦不统一。本文拟结合现有的举证责任制度的相关规定,对人身保险事故中“故意”要件的证明责任问题予以论述。

清代“伤人致死”司法情境下对因果关系的认知差异分析——以《曾国荃判牍》中“糜少芝”案为例

“故意伤害致人死亡”是中国古代律例中普遍认定的一种犯罪行为。在不同的历史时期,这一罪名被赋以不同的词称。基于特定行为对他人生命权存续造成侵害这一必然结果的发生,刑责惩戒和权益补偿即会随之成为州县官员在此类案件承审环节所集中思考解决的重点问题。清代“糜少芝”一案即属此种情形。该案中,行为过程与事实结果二者间前后关联性的密切程度、从不同视角涉入案情所形成的差异性认识,直接影响着对案中人予以何种责任承担和罪名拟定的思维路径,甚至决定了“生死有别”观念下刑种施行轻重程度的取舍选择以及古代法律所一贯标榜“审慎人命”基本功用的实现程度。

Transport Risk Assessment for the Environment

Transport risk assessment for the environment has two important aspects--problem solving model and solution veracity. Problem solving model is larger understanding of tasks interconnection, which represents in itself partial solution of general risk assessment. Veracity of solution means how the results are consistent with the reality. By researching of both aspects, it rises many unanswered questions. It is concerned about verification and validation of risk assessment results. By risk assessment for the environment it is possible to meet wide variety of more or less good soluble problems. It exists simple problems based on risk assessment of common traffic accidents connected with service charge outflow. On the other site, it exists complex problems of risk assessment connected with dangerous goods transport by traffic or pipelines. By simple problems solving there are not many questions about risk assessment veracity. It is possible to determine traffic accidents frequencies and service charge outflows consequences on the basis of examined events in transportation with great veracity. By complex problems the situation is quite different. The frequencies of large accidents are very low but the consequences for the environment may be large. Both are encumbered by large level of uncertainty. That is why the question is rising. To what degree, it is in these cases correct to make decision based on risk assessment.

A NEW APPROACH OF SIMULTANEOUS FAULTS DIAGNOSIS BASED ON RANDOM SETS AND DSMT

Simultaneous faults often occur in running equipments, in order to solve the problems of the simultaneous faults, a new approach based on random sets and Dezert-Smarandache Theory (DSmT) is proposed in this paper. Firstly, the simultaneous faults' model is built based on the generalized frame of discernment in DSmT. Secondly, according to the unified description of combination rules in evidence reasoning based on random sets, a new combination rule for simultaneous faults diagnosis is proposed. Thirdly, according to the working characteristics and environment of the sensors used to acquire fault characteristic information, a new method to construct basic probability assignment function is pro- posed based on membership. Finally, diagnosis result is obtained by use of the new combination rule combined with decision rules. A case pertaining to the fault diagnosis for a multi-function rotor test-bed is given, and the result shows that the proposed diagnosis approach is feasible and efficient.

Reflection--The Story of Water

Starting from the fact that water is quite arguably the source of life, the authors agreed to set up a project on water and name it： ＂REFLECTION＂. Particular focus was placed on the following issues： water in nature, importance of water in human life, physical and chemical properties of water, protection of water in nature. The aim of the project was to make students aware of the importance of water for health as well as to help them develop a rational relationship towards drinking water. In order to find answers to the issues raised, the authors designed worksheets, PowerPoint presentations, educational games （ecological postcards, dominoes, memory games, etc.）. The authors even tried our hand at making a comic strip. Students learned about the influence of water on health, as well as about water content in particular foods. The long-term goal of the project is to introduce children to scientific approach and methodology. Through active participation and dialogue, students discover cooperative learning and acquire skills that will be beneficial to them as well as to the wider community. Working on the project, students＇ evidence that the role of an individual is a key one in building a better world. This insight helps develop their civic skills and attitudes that serve as the starting point for environmental education. The authors made numerous adaptations and implemented individual approach with the goal of training students for independent work and life according to their personal abilities in line with the principles of inclusive education. Students conduct experiments following step-by-step instructions on specially adapted worksheets. Each student gets positive feedback and experiences the joy of success that leads to the development of self-confidence and love of work and learning.

The Fault Line in Chinese Reflective Thinking

Behind what is called ＂Needham＇s Grand Question＂ （why was China overshot by the West in science and technology？） lies a deeper question of how China came to lose the capacity of deeply reflective thought clearly present in the ancient Chinese philosophers. This is a loss felt by all Chinese as a psychological sense of hollowness, a loss of identity, made worse by the seeming inaccessibility of the ancient Chinese wisdom to the modern Chinese mind. It is clear that at some historical point China suffered an extreme psychological blow sufficient to traumatise it at the threshold of reflective thought, unable to look inwards any more. The paper identifies that point as the utter devastation wrought by Kublai Khan and the Mongols 750 years ago. What devastates reflective thought is wilfulness, the insistent focusing of all attention and energy on external, material things, and Kublai Khan was wilful in the extreme. What confirms this as the crippling point is that, in response to Kublai Khan＇s Mongol invasion the Chinese, over time, not only completely altered the geography of China itself, moving their capital to the North （Beijing）, but have ever since fought to establish as ＂China＂ all the territory over which Kublai Khan ruled. China is clearly not free of Kublai Khan＇s shadow. But even more precisely, in the process of doing this--and showing their own wilfulness--in building the Forbidden City in Beijing they built it in the shape of the Chinese metaphysical model of the universe, the Chinese version of the Tree of Life metaphysical glyph But it has an error in it. And the error is precisely that in where it places things, it makes what would have been the attributes of reflective thought subservient to wilfulness. The model itself thus shows the hollowness of the Chinese mind from that moment on. The outer form--the ＂appearance＂---of the ancient wisdom was still there. But the content--the ＂substance＂--of it was not. And with no reflective thought, true creativity disappears.

Study on the Current Physical Quality of Modem College Students and the Countermeasures

In recent years, the unexpected accidents of college students have occurred frequently in the playground. A student in Shanghai Sanda University suddenly fell at tile basketball class at the end of last year. In the same month, a male student in Shanghai East China University fell on the ground when taking part in the physical test of lkm running, and then passed away after the rescue was not valid. In this paper, the physical quality of the current college students is discussed on the basis of studying college students＇ quality education. This study is expected to play a role in reference.

Discovery, invention and serendipity

This paper attempts to relate serendipity, the natural ability to make interesting or valuable discoveries by accident （Longman Discovery of Contemporary English） with notable discoveries and inventions. It connotes the profound ability of finding out valuable things different from those who have been exploring by spending a lot of time or for years. The author will illustrate as many cases as possible within a given time constraint, so that surrounding environments and situations may be clarified, and such discoveries and inventions may be plausibly accomplished by accident or with rich reasons. These illustrations include historical as well as more recent cases. One of the cases is beyond the scope of our environment on the earth with preconceived notion, while other cases have given great impacts to our politics and also military intelligence. It should be noted that business and technological intelligence are deeply connected with discoveries, inventions and serendipity. In concluding remarks, the essence of serendipity will be summarized and how to side with the serendipity at the most important moment will be examined by viewing time series endeavors of the inventors and those who have devoted much time to discoveries.

Hazard Mitigation through a Systemic Model of Accident to a Socio-Technical System： A Case Study

This paper presents the STAMP （system-theoretic accident modeling and processes） accident model, based on systems theory, and describes its application in the context of risk prevention related to the remediation of contaminated sediments. The implementation of the model is described, and results are presented both in methodological and technical terms. The goal of this article is to emphasize the need of new approaches to take into account hazards and accidents within socio-technical systems.

Interpretation of Symbolic Meaning of＂The Great Gatsby＂ by American Writer Fitzgerald

＂The Great Gatzby＂ is a novel written by American writer Fitzgerald, which was selected as one of the top hunderd excellent novels by American academic authority at the end of 20th Century. Since the birth of the novel, Fitzgerald has become one of the most important American writers. In this novel, the author has used many symbolic techniques, which makes the novel theme extend to the American Dream failure from the surface love tragic love story. This paper interpretes the symbolic meaning of novel from the three aspects of specific things, color symbol and character symbol.

Exposure Work Commuting： Case Study among Commuting Accidents in Klang Valley, Malaysia

Traffic accidents caused the most accidental deaths at work in Malaysia. The SOCSO （Social Security Organization） reported that the number of deaths due to commuting accidents was 760, nearly two times more than deaths caused by accidents that happened at the workplace （471 deaths）. The aim of this study is to investigate the relationship of socio-demographic background and the risk exposure of the drivers during their work commuting trips. The study was based on compensation claims to SOCSO where data were extracted from ＂Form 21＂ provided by SOCSO. A total of 377 respondents were selected through systematic random sampling method from a list of SOCSO claimants. It was found that majority of the traffic accidents （83%） involved males and most of them （92.2%） were on motorcycles. Male drivers have an average driving experience of 10.7 years and 8.6 years for females. The estimation of the travelled distance for the sample from home to the workplace is 0.65-131 km. Mean accident occurrence time was 23 rain whilst mean distance was 11.6 km. The multiple regression analysis showed that the accident distance was affected by the age of driver, actual travel distance, travel objective and speed.

Evaluation of Road Accidents in Pristina in the Period 2009-2012

Approximately 15,000-17,000 thousand people die worldwide in traffic accidents as a consequence of all types of injuries. This study has a descriptive nature. It is based on data obtained from archives including the treatment database of the Emergency Center. The period January 2009 to December 2012 has been considered for this research. The aim of this study is to assess the prevalence of fatal road traffic accidents in Pristine, Kosovo, and describe their determinants. The number of injured in traffic accidents who have sought emergency medical assistance in the Emergency Center from January 2009 to December 2012 is increasing significantly. It is concluded that except reasons mentioned above and among others, there also are the following factors： enormous increase of number of persons equipped with driving license, driving speeds above limits which are considered to be the primary cause of the road traffic accidents. These findings can serve as a basis for health care professionals and policymakers to create preventive measures for traffic accidents.

著作权惩罚性赔偿制度中的适用条件解读——兼论其与法定赔偿的关系

2020年11月,十三届全国人大常委会第二十三次会议经表决通过了关于修改《中华人民共和国著作权法》的决定,在第54条中引入了惩罚性赔偿制度.从实证法与比较法的角度来看,惩罚性赔偿的适用应坚持"当且仅当"原则,"故意"与"情节严重"分别从主观与客观方面限制惩罚性赔偿的适用,惩罚性赔偿数额的确定应坚持比例原则.而惩罚性赔偿与法定赔偿的设计应相辅相成、相互配合,从而更加有效地发挥惩罚的功能.

论美国民事诉讼中的管辖权

本文通过对各种管辖权理论的产生、发展和演变过程的介绍和分析，系统、全面地论述了美国民事诉讼中的管辖权特别是对人管辖权制度。总结和归纳了确定州法院对人管辖权的各种情形和依据。

1-Neighbour knapsack problem and prospective greedy algorithm of intentional islanding in active distribution network

A connected and undirected graph model of active distribution networks with considering the function of interconnecting switches is constructed in this paper.Based on this model,the island partition problem of active distribution networks can be described as a 1-neighbour knapsack problem.An effective heuristic algorithm named prospective greedy algorithm is then proposed to solve this problem.Case studies on PG&E 69-bus network show the validity of the proposed model and algorithm.

Mortality pattern according to autopsy findings among traffic accident victims in Yazd, Iran

Objective： To describe mortality pattern and to determine undiagnosed fatal injuries according to autopsy findings among road traffic accident victims in Yazd, Iran. Methods： In this retrospective study, 251 victims of road traffic accidents who were admitted to a tertiary trauma hospital over a two-year period （2006 and 2007） and received medical cares were included. Hospital records were reviewed to gather demographic characteristics, road user type, and medical data. Autopsy records were also reviewed to determine actual causes of death and possible undiagnosed injuries occurred in the initial assessment of the emergency unit or during hospitalization. Results： There were 202 males （80.5%） and 49 females （19.5%）. The mean （＋SD） age of fatalities was 34.1 （＋21.5） years. Pedestrian-vehicle accidents were the most common cause of trauma （100 cases, 39.8%）. The most common cause of death was central nervous system injury （146 cases, 58.1%）. The other causes were skull base fractures （10%）, internalbleeding （8%）, lower limb hemorrhage （8%）, skull vault fractures （4%）, cervical spinal cord injury （3.6%）, airway compromise （3.2%）, and multifactor cases （5.1%）, respectively. Thirty-six fatal injuries in 30 victims （12%） mainly contributed to death according to autopsy, but were not diagnosed in initial assessments. The head （72.2%） and cervical spine （13.8%） regions were the two most common sites for undi- agnosed injuries. Conclusion： Training courses for emergency unit medical staff with regard to interpreting radiological findings of head and neck and high clinical suspicion for cervical spine injuries are essential to improve the quality of early hospital care and reduce the mortality and morbidity of traffic accident patients.