学术史视域下的近代中国民商法学研究

近代学者对民商法学之研究，就纵向角度而言，数量众多、视角多元；就横向角度而言，涌现出具有时代特征的若干代表作，如陈瑾昆的《民法通义总则》、戴修瓒的《民法债编总论》以及王宠惠的《比较民法概要》。这些著作构建了近代民商法学科，开启了现代民商法学的发展。总体而言，近代民商法学史具有三大特征：研究集中于基础理论问题，注重总则部分的探究；实体法和具体制度成为研究热点，程序法成果较少；国别研究、比较法研究是其一大特色。     

Harms caused by China's 1906–17 opium suppression intervention

Between 1906 and 1917 China (under the Imperial and then Republican regimes) enacted a highly effective intervention to suppress the production of opium. Evidence from British Foreign Office records suggest that the intervention was centred, in many areas, upon a highly repressive incarnation of law enforcement in which rural populations had their property destroyed, their land confiscated and/or were publically tortured, humiliated and executed. Crops were forcefully eradicated and resistance was often brutally suppressed by the military. As few farmers received compensation or support for alternative livelihood creation the intervention pushed many deeper into poverty. Importantly, the repressive nature of the opium ban appears to have been a contributing factor to the fragmentation of China, highlighting the counter-productivity of repressive interventions to reduce drug crop production.     

Police Perceptions of Supervised Consumption Sites (SCSs): A Qualitative Study

Police are key stakeholders in cities considering supervised consumption site (SCS) implementation. We examine police perceptions of SCSs using data collected between 2008 and 2010. Data from interviews and focus groups conducted with police officers of varied ranks (n = 18) in Ottawa and Toronto, Canada, were analyzed using thematic analyses. Participants opposed SCS implementation in their respective cities. The police views we heard invoke values and perspectives on evidence that differ from those used in research. Whether these divergent frameworks are reconcilable is a question for future research. Study limitations are noted. The Ontario HIV Treatment Network funded the study.     

Eye eccentricity modifies the perception of whole-body rotation

In order to explore the effect of gaze orientation on whole-body rotation perception, ten healthy participants were rotated in the dark while fixating on a visual target located either straight ahead or 15° to the right. A vestibular-memory contingent saccade paradigm was used to estimate the rotation perception. The results attest to the participants’ ability to accurately perceive their rotation, based solely on the intrinsic inputs (somesthetic and mainly vestibular), since the correlation between the imposed body rotation and the saccade amplitude was significant and positive. However, the rotation perception was less accurate and of lesser magnitude when the gaze was deviated in the opposite direction to the rotation than when it was either straight ahead or deviated in the direction of the rotation. This can be interpreted as the perceptual equivalent of Alexander’s law.     

论常燕生以“生物史观”为基础的新法治主义

为适应近代中国的救亡需求,新法家主要代表常燕生融合西方进化论学说和中国古代法家的法治思想,创生出有机生物史观和国家主义法治思想。以此为基础,常燕生大力提倡文化启蒙,主张建构近代民族国家,呼吁走渐进改良式的救亡道路。常燕生的思想因而带有明显的济世救亡的工具主义特质。批判性地反思其缺陷和不足,镜鉴其菁华,必大有益于当世“法治中国”建设。     

The public health implications of HIV criminalization: past,current, and future research directions

While public health remains the primary site of authority for preventing HIV transmission, recent shifts in the biopolitics of HIV have heightened tensions in the institutional and discursive relations through which the sexual lives of people living with HIV and broader HIV epidemics are regulated. Most notably, over the past decade, criminal justice responses to HIV have gained considerable traction. The growing use of the criminal law to regulate perceived HIV transmission risks has occasioned considerable controversy among people living with HIV, community-based AIDS organizations, health-care providers, public health authorities, prosecutors, judges, and the legal community. This article introduces a special section of Critical Public Health focused on the public health implications of HIV criminalization. The article reviews past and current work on the topic, situates the contributions made by the articles published in the special section, and outlines directions for future inquiry.     

Keeping confidence: HIV and the criminal law from HIV service providers’ perspectives

We present qualitative research findings about how perceptions of criminal prosecutions for the transmission of HIV interact with the provision of high-quality HIV health and social care in England and Wales. Seven focus groups were undertaken with a total of 75 diverse professionals working in clinical and community-based services for people with HIV. Participants’ understanding of the law in this area was varied, with many knowing the basic requirements for a prosecution, yet lacking confidence in the best way to communicate key details with those using their service. Prosecutions for HIV transmission have influenced, and in some instances, disrupted the provision of HIV services, creating ambivalence and concern among many providers about their new role as providers of legal information. The way that participants approached the topic with service users was influenced by their personal views on individual and shared responsibility for health, their concerns about professional liability and their degree of trust in non-coercive health promotion approaches to managing public health. These findings reveal an underlying ambivalence among many providers about how they regard the interface between criminal law, coercion and public health. It is also apparent that in most HIV service environments, meaningful exploration of practical ethical issues is relatively rare. The data presented here will additionally be of use to managers and providers of HIV services in order that they can provide consistent and confident support and advice to people with HIV.     

Role of Institutional Climate on Underrepresented Faculty Perceptions and Decision Making in Use of Work–Family Policies

The authors examined the institutional challenges that underrepresented minority (URM) faculty perceive in higher education with use of family support workplace policies. Evidence reveals that faculty encounter differences in access to information and explanations of how to use workplace–family statutes. A qualitative study of 58 URM faculty members highlighted five particularly notable themes: (a) faculty perceptions of how the institution views their family caregiving responsibilities, (b) inadequate compensation matters in the utilization of formal policies, (c) informal policies are often inaccessible and invisible, (d) social networks affect the inclusiveness of work–family institutional practices, and (e) fear of being regarded as a “red flag” constrains decisions regarding the use of policies. Given the push in higher education to diversify its faculty ranks, if administrators are to successfully implement diversity, equity, and inclusion and retain URM faculty, institutions need to pay particular attention to how URM faculty experience the academic climate regarding work–family balance.     

Participatory Workplace Wellness Programs: Reward,Penalty, and Regulatory Conflict

Context

In keeping with the Patient Protection and Affordable Care Act, Congress revised the law related to workplace wellness programs. In June 2013, the Departments of Treasury, Labor, and Health and Human Services passed the final regulations, updating their 2006 regulatory framework. Participatory programs that reward the completion of a health risk assessment are now the most common type of wellness program in the United States. However, legal and ethical concerns emerge when employers utilize incentives that raise questions about the voluntariness of such programs. At issue is that under the Americans with Disabilities Act (ADA) of 1990, employers cannot require health-related inquiries and exams.

Methods

To analyze the current interpretation of the ADA, I conducted research on both LexisNexis and federal agency websites. The resulting article evaluates the differences in the language of Congress''s enabling legislation and the federal departments’ regulations and how they may conflict with the ADA. It also reviews the federal government''s authority to address both the legal conflict and ethical concerns related to nonvoluntary participatory programs.

Findings

Employers’ practices and the federal departments’ regulations conflict with the current interpretation of the ADA by permitting employers to penalize employees who do not complete a health risk assessment. The departments’ regulations may be interpreted as conflicting with Congress''s legislation, which mentions penalties only for health-contingent wellness programs. Furthermore, the regulatory protections for employees applicable to health-contingent wellness programs do not apply to participatory programs.

Conclusions

Either Congress or the federal agencies should address the conflict among employers’ practices, the wellness regulations, and the ADA and also consider additional protections for employees. Employers can avoid ethical and legal complications by offering voluntary programs with positive incentives.