Safety management model 1: introduction to safety management
abstract
Confidentiality management system is the key and guarantee to do a good job in _ _ _, and it is the embodiment of a country's thought and core values. At the same time, the secrecy management system and the secrecy legal system are two inseparable and important links. Legal system guides the construction of management system, and perfect management system is the guarantee of implementing legal system.
Looking at the world, the United States has a long development time, the most perfect system construction and system construction, and the most distinctive. There is no special secrecy law in the United States, but there is a relatively complete secrecy legal system. The United States does not have a special independent safety administrative organization, but it has a relatively mature safety management system. In contrast, although China has a special secrecy law, it is hard to say that there is a relatively complete secrecy legal system.
It is the main thread that runs through the history of American secrecy thought to study American secrecy thought deeply and balance the relationship between openness and secrecy. The general development trend of American federal secrecy system is to relax the control of government information, which is conducive to citizens' access to government information. At the same time, this is also the basic requirement of the secrecy system in various countries. Compared with China, although the new secrecy law has many improvements over the old secrecy law, its basic value orientation remains unchanged: as always, secrecy is the principle, and secrecy takes precedence over publicity. "
"Stones from other mountains can attack jade". It is of great significance to learn from American secrecy system, secrecy laws and secrecy thoughts to improve the level of secrecy management in China.
Keywords: management system; Legal system; Ideological value; secrecy law
The first chapter is introduction.
On the date of death of death, "the Supreme People's Court on the implementation of.
The question here is, is it necessarily reasonable to take the date when the judgment is pronounced as the date when the natural person dies? When an interested party applies depends entirely on his subjective will. If the date of the court decision is taken as the date of death, this date is obviously too subjective and lacks certainty. The date of death is of great significance, which is directly related to the determination of heirs, inheritance scope and many other important issues. If it is implemented in accordance with the existing laws and regulations, it will inevitably lead to certain doubts and objections, and it is unfair to implement it. In the reality that the interests of interested parties are not fully protected, this is contrary to the legislative purpose of the system of declaring death.
For the order in which the applicant declares death, there is no relevant provision in China's General Principles of Civil Law, but the Supreme People's Court's "On Execution"
However, this provision in China is obviously inappropriate. In some cases, in many legal practices, these provisions highlight many problems and bring a lot of controversy.
Chapter II Discussion on Opinions of All Parties
(1) Discussion on the stipulation of death date
When death is declared, the date of death of the declared deceased involves important matters such as inheritance, insurance payment, personal relationship of survivors, such as the specific scope of inheritance, the specific scope of heirs and legatees, the start time of inheritance, the way of inheritance, the possibility of subrogation inheritance, etc., which has extremely important legal significance.
Wei Zhenying mentioned in the Civil Law that different countries have different regulations: for general disappearance, the time of death of the missing person is sometimes stipulated as the expiration of the missing period required for legal declaration of death (such as Japan and Taiwan Province Province).
Area), some are specified as the last news of missing persons (such as Switzerland); For people missing in war or accident, the time of death is defined as the time when the war stops, the ship sinks or the danger disappears (such as Japan), the time when the missing person disappeared in war or accident (such as Switzerland and Italy), and the time when the legal period of disappearance required for declaring death expires (such as Taiwan Province Province).
Yu Nengbin and Ma Junju mentioned in the book Modern Civil Law that declaring death is the symmetry of physical death, physical death is a natural reality, and declaring death is a legal reality. It is a kind of presumption, that is, the fact that a natural person has died is inferred according to the fact that his whereabouts have not reached the statutory time limit.
It can be seen that the definition of the date of death in the system of declaring death does not give a definite answer, showing the situation that "different people have different opinions", and each view has its rationality and legislative value. However, neither the time of death inferred from jurisprudence nor the different provisions given by national legislation can be perfectly applied to every case.
(b) Discussion on the order of stakeholders
In China's legal theory circle, there are three main theories about the order of stakeholders. The first is the "sequence" theory, that is, when the interested parties of missing persons apply for declaration, there are sequences and they are divided into multiple sequences. If the former sequence is not applicable, the latter sequence may not be applicable. The same order does not affect each other. This view has been adopted by China's legislation.
The second view is "obstacle theory", that is, all interested parties have the right to apply for declaration of death, and every closely related party will not be affected by the application or opposition of other interested parties.
The third view is the "spouse priority theory", that is, the theory of limited obstacles, that is, spouses have.
If one vote is rejected, other applicants apply for equal rights, and other interested parties may not apply for declaring the missing person dead without the permission of their spouses.
Wei Zhenying mentioned in the Civil Law that the purpose of the system of declaring death is to protect the interests of interested parties, especially their close relatives. No other interested party will apply to anyone, which will harm the legitimate interests of other interested parties, which obviously violates the purpose of establishing the system of declaring death in civil law.
There is also debate about the order of creditors' application when death is declared. One view is that creditors, like other interested parties, can be applicants. Another view is that allowing creditors to be applicants is beneficial to protect the interests of creditors, but its effectiveness is beyond the scope of bond effectiveness. The protection of creditors' interests can be solved through the system of declaring missing, and the applicant who declares death should be limited to close relatives whose whereabouts are unknown.
Chapter III Typical Cases and Analysis
(1) When should the time of death be counted?
1. Brief introduction of the case:
A case occurred in Loudi, Hunan Province: one day after a man and a woman got married for three months, the woman accidentally fell into the river. A man heard the cry for help and jumped into the water to save him, but both of them were killed. The body of the man was found, but the body of the woman was not found. Two years after the accident, B's parents applied to the court to declare her dead. Party A and Party B purchased personal accident insurance respectively before their death, and one of them took Party A as the insured, with an insurance amount of 654.38+million yuan, and the designated beneficiary was Party B; The other takes female B as the insured, the insured amount is 80,000 yuan, and the designated beneficiary is male A. In addition, Party A and Party B
Buy a new house after marriage, worth 60 thousand. Neither side has children. Both parents appealed to the court for disputes over insurance money and house inheritance.
A man's relatives claimed that B woman fell into the water before A man, and women's physical strength was weaker than that of men, so B woman should die before A man. In the first policy, the beneficiary's second daughter died before the insured. According to Article 63 of the Insurance Law, if the beneficiary dies before the insured, the insurance money shall be the insured's inheritance, and the insured's heirs shall receive the insurance money, so the insurance money of 654.38 million yuan shall be inherited by the insured's parents. In the second policy, the beneficiary is male after the death of the insured, that is, when the second woman dies, the male can become the beneficiary. After the death of a man, the 80,000 yuan insurance money he benefited should be inherited by his parents as an inheritance; In some houses of Party A and Party B, the output is analyzed first, and each party gets 30,000 shares. Because Party B died first, 30,000 shares of Party B's daughter were shared equally by the parents of Party A and Party B as husbands, each with 654.38+0,000 shares. A's share of 30 thousand should be inherited by A's parents, because B's daughter died before A's man, and B does not have the right to inherit. Then for parents in room A, * * * gets 40,000 shares, while parents in room B can only get 20,000 shares. To sum up, A's parents can get all the insurance claims of 6.5438+0.8 million from the two policies, and can divide 40,000 shares of the house as the inheritance; B's parents can only get 20 thousand shares of the house.
Relatives of woman B claimed that although woman B fell into the water first, her death date should be the date when the court declared her dead, that is, two years after the accident, so man A died first and woman B died last. According to the law, you can get completely opposite distribution results: B's parents can get all180,000 insurance compensation from two policies, and they can divide 40,000 houses as inheritance; A's parents can only get 20 thousand shares of the house.
Others argue that in view of the particularity of this case, it can be concluded that A and B died at the same time, and there is no inheritance relationship between them according to the inheritance law; According to the insurance law, the beneficiary should be presumed dead first, then the insurance money belongs to the insured and the heirs of both parties inherit it separately, then the insurance money of 654.38 million yuan of the first policy should be inherited by A's parents as A's inheritance; The insurance premium of 80,000 yuan for the second policy shall be inherited by B's parents as B's legacy. The house is inherited by both parents, with 30,000 shares.
2. Case analysis
According to the current law, the second approach is undoubtedly the most correct. In the end, the court also gave the same judgment as the second time, but a legal judgment does not mean that it is reasonable. Obviously, such a judgment violates the fairness and justice in fact and does not conform to the principle of public order and good customs in civil law.
The key point in this case is how to determine the date of death in the death declaration. Different identification methods have caused two completely opposite consequences, so they have great influence on the interests of interested parties. If you put "About the implementation"
If it is handled according to the third statement, it will be fair to both parties involved, but this is just an idea, not a reality. In the first statement, Party A's parents fell into the water first from their second daughter.
Moreover, women's physical strength is weaker than that of men, so it is unreasonable to draw the conclusion that the second woman died first from the first man, which belongs to inference. Even if the subsequent discussion based on the assertion that the second daughter died first is completely reasonable, it does not mean that this statement is convincing. 、
Similarly, in the second statement, all the evidence and theories were in line with the current law, so it was finally recognized by the court. But it is also true that the time of death of male A and female B is inferred, and there is no conclusive evidence to prove that female B died of male A, so even if the second statement is legal, it cannot convince the stakeholders of male A..
It can be said that the first two statements are unreasonable, but the second statement is legal and legally recognized. Therefore, if we want to follow the principles of fairness, public order and good customs in civil law, the third statement is undoubtedly the best.
(2) Is the ranking of stakeholders reasonable?
1. Brief introduction of the case
2001112, Li Jianping's husband Pan Yongguang disappeared, leaving more than1000000. In 2008, in order to get the property, the father repeatedly asked for the death of his son. However, due to the order of application, the father could not apply without the consent of his daughter-in-law, which eventually led to his daughter-in-law, granddaughter and son.
2. Case analysis
The focus of this case is whether the order of applicants for death declaration is reasonable. Seven years after Pan Yongguang's disappearance, it is very reasonable for his father to apply for a declaration of death, because according to common sense, Pan Yongguang, who has been missing for seven years, should have died. At this time, a declaration of death can end the civil legal relationship centered on Pan Yongguang and solve the contradiction caused by property division. But in reality, if the spouse of the declared person does not agree to declare death, others have no right to declare death, and the spouse can embezzle the property of the missing person alone to achieve his own purpose.
Just like Li Jianping in this case, she insisted on disagreeing with Pan Yongguang's father's death statement. This inference does not rule out that she wants to own more than 1 10,000 yuan of property. Therefore, there is serious inequality and unfairness in the distribution of interests of stakeholders. Therefore, the legislative purpose of the system of declaring death has not been achieved.
The fourth chapter summarizes the views of all parties.
(a) truthfully reflect the time of death, try to follow the principle of fairness.
Under normal circumstances, it is generally recognized that the time determined in the judgment is the time of death. Because the court's decision to declare death has a strong legal nature, more authority and accuracy. However, this view just ignores the role of the legal period of disappearance. The possibility of death of the missing person increases gradually with the extension of the missing time, and it is more reasonable to determine the time of death by the legal missing period.
If a natural person is missing in a dangerous accident, but his death can be determined according to the situation at that time, or it is determined that he is no longer alive after being searched by the relevant departments, no matter whether his body is found or not, it is regarded as death, and there is no need to go through legal procedures for declaring death, and of course there is no need to determine the time of death. But for psychological reasons, the interested party must wait for the legal proof of death and will not accept such a fact. Therefore, legal confirmation is not only a procedural confirmation, but also a psychological comfort to interested parties.
Therefore, the determination of the time of death should be based on facts and take the law as the criterion. Under the condition of following objective facts, we should also adhere to the principle of fairness in civil law and not harm the interests of interested parties. To sum up, I think that if there is evidence to show the time of death of the missing person, we should take the real time of death as the standard. If not, the time of death of the person declared dead shall be based on the time of death determined by the judgment, and the basis of the judgment shall be the date of expiration of the legal period.
This can basically ensure the equality of applying the law to the declared dead under different circumstances and reduce the differences in the trial process.
(b) Reference should be made to "Spouses have no priority".
Among the three popular sayings in China's academic circles, the third one is more in line with China's current situation, that is, "spouses have priority without order", that is, "finite without order". Because it not only avoids the embarrassing situation that the preface cannot be applied, but also takes into account the principle of fairness and special circumstances.
The statement of "disorder" is a fair practice, and the restriction of "spouse first" makes this statement more reasonable and more suitable for legal practice.
First, it avoids the problem that one's own marriage is decided by others, protects the marriage rights of the parties, reduces the emotional harm to the spouse, and also embodies the legal principle that personal rights are greater than property rights.
Secondly, this view has little influence on the system of declaring death, because not all cases of declaring death will involve the spouse as an interested party.
Third, if there is a spouse similar to this case, the applicant in the latter order can give evidence to the court and ask the court to deprive him of the right of priority to apply in order to safeguard his rights and interests.
To sum up, the view of "spouse first" is the most suitable for China's social situation and national conditions, and should be adopted.
refer to
[1] Wei Zhenying: Civil Law, Peking University Publishing House, 2000.
[2] edited by Yu Nengbin and Ma Junju: Modern Civil Law, Wuhan University Press, 1995.
[3] Jiang Wei Editor-in-Chief: Civil Procedure Law, Fudan University Press, 2002.
Model Article 2 on Confidentiality Management: Interim Measures for Confidentiality Management of Dissertations
Chapter I General Principles
Article 1 In order to keep state secrets, protect intellectual property rights, technical secrets and other contents that should not be made public, and standardize the confidentiality management of graduate dissertations in our school, according to the
According to the relevant provisions of the law of People's Republic of China (PRC) on guarding state secrets and the management of graduate dissertations, these measures are formulated.
Article 2 The term "dissertations on confidentiality management" as mentioned in these Measures refers to graduate dissertations and internal dissertations. Postgraduates' secret-related dissertations refer to dissertations involving state secrets. Postgraduate internal dissertations refer to dissertations whose contents do not involve state secrets, but involve intellectual property rights, technical secrets or sensitive information, which should not be made public within a certain period of time.
Article 3 Tutors are responsible for the writing and confidentiality management of confidential dissertations and internal dissertations. Tutors should do their best to decrypt confidential papers. For the papers that can't be decrypted, the tutor should conscientiously do a good job in the confidentiality management and guidance of the whole process of secret-related degree papers from topic opening, writing and printing to marking, defense and filing.
Article 4 The classification of graduate dissertations in our school is divided into four levels: open, internal, secret and confidential.
Openness: According to the openness of academic research and the principle of protecting intellectual property rights, most dissertations should be made public.
Internal: Dissertations whose research results are not included in the scope of state secrets but are going to apply for patents or technology transfer and involve technical secrets should not be made public for a period of time.
Secrets and Secrets: The research background comes from dissertations of scientific research projects that have been kept secret, belonging to secret dissertations.
Chapter II Examination of Confidential Dissertations
Article 5 Confidential dissertations must be kept confidential and "first"
After examination and approval, writing "principle.
Article 6 An application for a classified thesis should be made before the topic is opened. The applicant should fill in the Examination and Approval Form for Classified Dissertations of Henan Polytechnic University (Annex 1), and the topic opening report and research work can only be carried out after being approved by relevant departments.
Article 7 Examination procedures for secret-related dissertations
(1) Under the guidance of the tutor, the applicant of the classified thesis carefully fills in the Approval Form for Classified Thesis of Henan Polytechnic University, provides relevant supporting materials as required, and submits it to the jury of the classified thesis of the graduate students in the unit for preliminary examination.
(2) The leaders in charge of graduate education in each unit are the examiners of graduate secret-related dissertations, and are responsible for the preliminary examination of graduate secret-related dissertations. All units shall examine and approve the classification of graduate dissertations in strict accordance with the Provisions on the Determination and Alteration of State Secrets of Henan Polytechnic University and other relevant documents.
(three) to apply for the classification of classified dissertations, it must be reported to the Ministry of Science and Technology for approval and the school classification working group for approval.
(four) the confidentiality period of confidential papers shall be determined according to the classification. The confidentiality period of confidential dissertations shall not exceed 10 years, and the confidentiality period of confidential dissertations shall not exceed 20 years.
Article 8 The author of confidential dissertations shall sign the Confidentiality Agreement for Confidential Dissertations of Henan Polytechnic University (Annex 2) and promise to keep the relevant confidential contents confidential. Personnel who are exposed to confidential dissertations due to work needs shall not copy or disseminate part or all of the dissertations in any form.
Chapter III Management of Confidential Dissertations
Article 9 Confidential papers must be written and revised on a confidential computer.
Article 14 Confidential dissertations are important academic works and an important part of scientific research achievements, and must be properly kept in accordance with confidentiality provisions. Before leaving school, the degree applicant should send the printed version of the classified degree thesis in triplicate and its electronic version (CD-ROM) together with the Approval Form for Classified Degree Thesis of Henan Polytechnic University and the Confidentiality Agreement for Classified Degree Thesis of Henan Polytechnic University directly to the school degree office for unified management according to the confidentiality requirements. Confidential papers will be returned to the college after the expiration of the confidentiality period, and the college will send them to relevant units for filing.
Fifteenth school degree offices should do a good job in the confidentiality management of confidential dissertations. During the period of confidentiality, the printed and electronic versions of confidential dissertations should be kept in the counter, and no one can borrow them without the approval of the school secrecy Committee.
Sixteenth confidential dissertations and related information are prohibited from being detected and disseminated online, and are not included in the scope of random inspection and evaluation during the confidentiality period.
Seventeenth confidential dissertations are automatically decrypted after the expiration of confidentiality. The decrypted classified dissertations are managed and provided with services according to the collection, management and service methods of non-classified dissertations.
Eighteenth graduate students with confidential dissertations should fill in the information of degree granting before graduation, and the relevant information should be treated in accordance with the confidentiality requirements to avoid disclosure. If you fill in the title and keywords of your dissertation, you can fill in the "confidential thesis" without filling in the specific title and keywords.
Chapter IV Audit and Management of Internal Dissertations
Nineteenth according to the particularity of scientific research projects or the need for confidentiality of research contents, a few dissertations can be kept confidential according to the internal dissertations of graduate students under certain circumstances. Postgraduates' internal papers shall not involve state secrets. Internal degree theory
In principle, the confidentiality period is 2 to 5 years. After the completion of the paper, the confidentiality level and duration of the paper determined by the confidentiality examination and approval shall be clearly marked on the cover and the upper right corner of the title page of the paper, such as "confidentiality level: internal 3 years".
Twentieth internal dissertations should be kept confidential, and the author of the thesis should fill in the "Approval Form for Confidentiality of Internal Dissertations of Henan Polytechnic University" (Annex 3) under the guidance of the tutor, and report it to the person in charge of the unit and the Graduate Department for approval and filing.
Article 21 During the course of topic opening, examination (including pre-examination) and defense (including pre-defense), tutors may put forward specific confidentiality requirements according to actual needs and report them to the person in charge of the college for approval before implementation.
Twenty-second internal dissertations that need to be kept confidential after examination and approval must be decrypted in advance under the guidance of the tutor before academic misconduct can be detected. If improper decryption leads to leaks, the responsibility shall be borne by the author and the instructor.
Article 23 The printed version and electronic version (CD-ROM) of the internal dissertation, together with the Confidentiality Approval Form for the Internal Dissertation of Henan Polytechnic University, shall be directly sent by the degree applicant to the academic degree office of the university, and shall be managed in a unified way according to the confidentiality requirements. After the expiration of the confidentiality period, it will be returned to the college, which will send it to the relevant units for filing.
Chapter V Supplementary Provisions
Twenty-fourth graduate students fail to complete the relevant examination and approval in accordance with the procedures stipulated in these measures, and write confidential papers or internal papers, and the consequences arising therefrom are at their own risk. Relevant units, managers, project leaders, tutors and graduate students do not follow the regulations.
The provisions of the review, approval and management of confidential documents, resulting in leaks or serious hidden dangers, shall be investigated for the responsibility of the relevant personnel.
Twenty-fifth degree applicants who have been approved to keep their dissertations confidential shall go through the relevant formalities of leaving school with the Certificate of Dissertation Confidentiality Management issued by the academic degree office of the school (Annex 4).
Twenty-sixth colleges and universities should formulate quality control measures and rules and regulations for confidential dissertations according to the actual situation of their own units to ensure the quality of confidential dissertations.
Twenty-seventh these Provisions shall be interpreted by the school secrecy office and the graduate office. Article 28 These Provisions shall come into force as of the date of promulgation. If the original relevant regulations of the school are inconsistent with these measures, these measures shall prevail.