医疗损害鉴定中过错认定的实证研究——基于江苏省S市医学会367份鉴定书分析

以《医疗损害司法鉴定指南》（SF/T 0097-2021）中过错鉴定的相关规定为理论依据,以江苏省S市医学会2018—2022年367份案例书为统计样本,探究医疗损害过错鉴定实务现状,结果表明当前医疗过错鉴定中存在诊疗规范界定不明,鉴定人过于侧重审查具体规定而忽视注意义务,鉴定人过于苛责医方的注意、告知义务,“紧急救治”“容许风险”两种特殊理论是否适用有分歧等问题。面对这些问题,笔者认为应当从明确规范范围、过错认定核心、特殊情形适用和建立专业案例库等角度寻求出路。     

The Port-Royal Logic's Theory of Argument

This is a critical examination of Antoine Arnauld's Logic or the Art of Thinking (1662), commonly known as the Port-Royal Logic. Rather than reading this work from the viewpoint of post-Fregean formal logic or the viewpoint of seventeenth-century intellectual history, I approach it with the aim of exploring its relationship to that contemporary field which may be labeled informal logic and/or argumentation theory. It turns out that the Port-Royal Logic is a precursor of this current field, or conversely, that this field may be said to be in the same tradition.     

Relevance

Relevance is a triadic relation between an item, an outcome or goal, and a situation. Causal relevance consists in an item's ability to help produce an outcome in a situation. Epistemic relevance, a distinct concept, consists in the ability of a piece of information (or a speech act communicating or requesting a piece of information) to help achieve an epistemic goal in a situation. It has this ability when it can be ineliminably combined with other at least potentially accurate information to achieve the goal. The relevance of a conversational contribution, premiss relevance and conclusion relevance are species of epistemic relevance thus defined. The conception of premiss relevance which results provides a basis for determining when the various arguments ad called fallacies of relevance are indeed irrelevant. In particular, an ad verecundiam appeal is irrelevant if the authority cited lacks expertise in a cognitive domain to which the conclusion belongs, the authority does not exercise its expertise in coming to endorse the conclusion, or the conclusion does not belong to a cognitive domain; otherwise the ad verecundiam is relevant.     

Classical rhetorical topics and contemporary historical discourse

This paper suggests a specific contribution of contemporary history and philosophy of science to the theory of history. The pragmatic in the technical sense of analysis of use and user aspects of scientific discourse, and the pragmatist, in the sense of a focus on utility as canon, dimensions of modern philosophy of science illumine the structure of historical inquiry. Simply put, the structure of writing produced by the historical discipline is argumentative. Further, the nature of the historical argumentative strategies is best described by reference to classical rhetorical, to topical modes of argument.     

A Survey of 25 Years of Research on Legal Argumentation

This essay discusses the developments and trends of research in legalargumentation of the last 25 years. The essay starts with a survey of thevarious approaches which can be distinguished: the logical approach, therhetorical approach, and the dialogical approach. Then it identifies varioustopics in the research, which constitute the various components of aresearch programme of legal argumentation: the philosophical component, thetheoretical component, the reconstruction component, the empiricalcomponent, and the practical component. It concludes with a discussion ofthe main trends in the research of the last 25 years.     

The Pragma-Dialectical Analysis and Evaluation of Teleological Argumentation in a Legal Context

In this article the author develops a framework for a pragma-dialectical reconstruction of teleological argumentation in a legal context. Ideas taken from legal theory are integrated in a pragma-dialectical model for analyzing and evaluating argumentation, thus providing a more systematic and elaborate framework for assessing the quality of teleological arguments in a legal context. Teleological argumentation in a legal context is approached as a specific form of pragmatic argumentation. The legal criteria that are relevant for the evaluation of teleological argumentation are discussed and translated in terms of critical questions that are relevant for the evaluation of the various forms of teleological argumentation.

Formal aspects of Legal reasoning

This paper discusses the functions of deductive justification in ideal reconstructions of judicial reasoning. It departs from the point of judicial reasoning: explaining and justifying the judicial decision. It argues that deductive validity is not enough for good judicial argument. On the other hand, deductive justification is necessary, not only for easy cases but for hard cases as well. It draws some consequences for the concept of jumps in legal reasoning and for the traditional distinction between internal and external justification.     

Argument and alternative dispute resolution systems

Alternative dispute resolution occurs outside the litigation process. The alternative dispute resolution (ADR) movement in North America has emphasized viable alternatives to the litigation framework, such as arbitration, mediation, med-arb, multi-party facilitation, non-legal negotiation, mini-trials, administrative hearings, private judging (renta-judge), fact finding, and moderated settlement conferences. This essay addresses argument in the dominant alternatives: arbitration, mediation, and multi-party facilitation. Prior to comparing argument in these ADR systems, each will be briefly described.     

A Pragma-Dialectical Approach of the Analysis and Evaluation of Pragmatic Argumentation in a Legal Context

This paper answers the question how pragmatic argumentation which occurs in a legal context, can be analyzed and evaluated adequately. First, the author surveys various ideas taken from argumentation theory and legal theory on the analysis and evaluation of pragmatic argumentation. Then, on the basis of these ideas, she develops a pragma-dialectical instrument for analyzing and evaluating pragmatic argumentation in a legal context. Finally she demonstrates how this instrument can be used by giving an exemplary analysis and evaluation of pragmatic argumentation in a decision of the Dutch Supreme Court.     

Subordinating Truth – Is <Emphasis Type="Italic">Acceptability</Emphasis> Acceptable?

Argumentation logicians have recognized a specter of relativism to haunt their philosophy of argument. However, their attempts to dispel pernicious relativism by invoking notions of a universal audience or a community of model interlocutors have not been entirely successful. In fact, their various discussions of a universal audience invoke the context-eschewing formalism of Kant’s categorical imperative. Moreover, they embrace the Kantian method for resolving the antinomies that continually vacillates between opposing extremes – here between a transcendent universal audience and a context-embedded particular audience. This tack ironically restores the very external mediation they thought to obviate in their aim to ‘dethrone’ the absolutism and totalitarianism of formal logic with a democratic turn to audience adherence, the acceptability of premises and inferential links, and a contextual, or participant-relative, notion of cogency.