8000-word graduation thesis 1: on the legal basis of the formation of legal belief
As the spiritual foundation of a country ruled by law, legal belief is undoubtedly of great significance in today's rule of law. By defining the concepts of legal belief and good law, this paper expounds what kind of law can be believed, thus explaining the role of good law in the formation of legal belief.
Keywords: the role of legal belief in good law
I. Introduction
In the past twelve years, ruling the country according to law has been the basic strategy of our country. In order to realize the ideal prospect of governing the country according to law, China has basically established a socialist legal system, and basically all socialist undertakings have laws to follow. Although there are laws, in practice, laws are more powerful than laws, and people are more powerful than laws. Words are used to replace laws and rights are used to abolish laws. Why is this happening? In the final analysis, the law is not believed. If the law is not believed, it is no different from a piece of paper, as Pahlman said. The law must be believed, otherwise it will exist in name only. ? As the only object of belief, law plays an irreplaceable role in cultivating legal belief. But what kind of laws should we believe? As a kind of good law different from evil law, good law should be regarded as the natural object of legal belief. Based on the importance of good law in the formation of legal belief, this paper analyzes the importance of good law through the following logic: legal belief is the spiritual basis of the strategy of governing the country according to law, and how is this spiritual basis formed? As the only object of legal belief, law plays a key role in the formation of legal belief, so what kind of law will be believed? Good laws with reasonable values, standards, systems and procedures should be the object of legal belief.
Second, the definition of legal belief and good law.
Legal belief
The word legal belief has no specific explanation in Ci Hai, only the explanation of belief is:? Faith is the extreme conviction and respect for a certain religion or a certain doctrine, and it is the criterion of action. ? Professor Xie Hui thinks? Legal belief is an organic unity of two aspects: on the one hand, the subject takes firm legal belief as the premise and legal rules as the code of conduct under its control; On the other hand, it is the activity of the subject under strict legal rules. ? Therefore, the author believes that legal belief refers to the process in which social subjects believe and respect the law, and turn this psychological state of conviction and respect into a code of conduct. Legal belief is a dynamic process, not static, but an organic unity including psychological state and behavioral process. In other words, legal belief exists not only in theory, but also in the practice of rule of law.
(2) Good law
Good law belongs to the category of legal philosophy corresponding to evil law, and it is a broad and developing concept, which includes two inseparable aspects: substantive goodness and formal goodness of law. It is not easy to give an accurate definition of good law, so we can discuss the concept of good law from the standard of good law. The Theory of Good Law, edited by Professor Li Long, holds that the basic standards of good law are value rationality, normative rationality, institutional rationality and procedural rationality. The author believes that good law should be considered from the perspective of what should be, and good law should be the organic unity of substantive goodness and formal goodness. Therefore, what should the law be, not what the law is or was? Value rationality should be the soul of good law, and normative rationality, institutional rationality and procedural rationality are all aimed at realizing the value rationality of good law. Therefore, a good law should conform to the laws of nature, society and human development, and meet the standards that subjects enjoy the most universal human rights, fairness and justice, and can be believed and exercised by most independent social subjects.
Third, the law is the only object of legal belief.
Legal belief, as a kind of belief, should only be believed and respected by law, not by objects such as power, doctrine, customs and habits. If there are other objects outside the law, it is not a legal belief and cannot be cultivated. What are the three qualities of law? Freedom-human rights, utility-interest, security-relief? It is an internal factor that law becomes the object of legal belief. In addition, the supremacy of norms is the premise that law becomes the object of legal belief. It is precisely because of the characteristics and supremacy of law in protecting human rights, relieving rights and realizing interests that law is the only object of legal belief.
Fourth, what kind of laws will be believed?
The premise of governing the country according to law is that there are laws to follow. Only by establishing and constantly improving the legal system can we provide a legal basis for governing the country according to law, and legal belief is the spiritual basis for governing the country according to law. Only when the law is truly respected and exercised by social subjects can the rule of law be realized, but as long as it is a law, it is not necessarily believed. It depends on whether this kind of law has the characteristics of reasonable value, standard, system and procedure, whether it can guarantee human rights, remedy rights and realize interests, and whether it can reflect the inevitability of law.
Fifth, the role of good law in the formation of legal belief.
According to Professor Xie Hui's division of legal belief into legal belief and activities dominated by legal belief, the role of good law in the formation of legal belief can be realized in the following two aspects: 1. The role of good law in the formation of legal belief. Legal belief is a concept about the individual's subjective psychology, which includes the individual's conviction and respect for the law, and internalizes this conviction and respect into an unchangeable concept, and the premise of this conviction and respect is that the law can realize certain interests of the subject. Good law has the value basis of being believed because of its utility-interest, guarantee-relief and freedom-human rights; 2. The role of good law in legal practice. The premise of legal practice is that there is a law to follow, and the goodness of this law determines the effectiveness of legal practice, and the effective implementation of the law is the proper meaning of legal practice. The good and evil of law determines the most basic logical starting point and value basis of people's belief. Only a good law, which aims at protecting human rights, can be universally recognized and observed by social subjects, and the good implementation of the law can make people believe and respect the law, and legal beliefs can be formed.
Conclusion of intransitive verbs
Legal belief is undoubtedly very important in today's society ruled by law, but in order to truly make the law become the belief of ordinary people, first of all, the law should be a good law and should be effectively implemented. The proliferation of laws and regulations will not only bring various social costs, but also hinder the professional self-discipline of legal persons. The decline of the professional quality of legal persons will undoubtedly prompt people to find other channels outside the legal system, solve disputes and safeguard their own rights and interests, that is, resort to private relief. Therefore, the law should not only be close to the good law in the formulation process, but also be effectively implemented, so as to provide legal examples for the people, convince them of the law, internalize the law into faith, and then believe in the law.
Precautions:
(1) [America] Pahlman. Law and religion. Life? Reading? Xinzhi Sanlian Bookstore. 199 1: 28.
② Li Long. Above good law. Wuhan University Press.2001:71-72.
3 resign from the sea. Shanghai Dictionary Publishing House. 1979: 565.
4 Xie hui. The concept and foundation of legal belief. Shandong people's publishing house. 1997: 15.
⑤ Li Long. Above good law. Wuhan University Press.2001:71-72.
⑥ Zhong Mingxia and Fan. Several questions about legal belief. Laws of China. 1998 (2).
⑦ Xie Fei. On the premise and economic basis of the formation of legal belief. The world of lawyers. 2002(7).
Xie Hui. The concept and foundation of legal belief. Shandong People's Publishing House. 1997: 15.
8000-word graduation thesis 2: On the legal prevention of moral hazard in insurance law
People pay more and more attention to insurance in society, and there are also many judicial cases in the practice of insurance legal relationship. This paper first analyzes the manifestations and causes of legal moral hazard in insurance activities, and analyzes the defects of China's insurance law in preventing insurance moral hazard, and puts forward constructive suggestions on the formulation and revision of China's insurance law from the perspective of legal person.
Keywords Insurance Morality Risk Insurance Morality
First, the manifestations and causes of insurance moral hazard
(A) the basic concept of insurance moral hazard
Moral hazard refers to the intangible factors related to people's morality, that is, the reasons and conditions for the destruction of social wealth and personal injury and death due to personal dishonesty, dishonesty or improper attempts. Moral hazard used to exist mainly in the economic field, but in recent years, with the continuous expansion of the insurance field, coupled with the characteristics of the insurance system and the imperfection of relevant laws and regulations, moral hazard has become more and more common in the insurance field, and insurance moral hazard has become a unique term in the insurance industry.
? Insurance moral hazard? It refers to a mental or psychological state of obtaining illegitimate interests through insurance, that is, the danger that the applicant takes out insurance in order to seek compensation or payment of insurance money and defrauds insurance money by promoting or creating insurance accidents. This paper holds that the subject of insurance moral hazard should include the insured and the beneficiary besides the insured. Compared with general risks, insurance moral hazard has its own characteristics. Generally speaking, the actual danger is tangible, while the insurance moral hazard is intangible, which is difficult to predict with the relevant laws of the insurance industry, so it is difficult to identify.
The basic function of insurance system is to spread risks and compensate losses, but man-made insurance moral hazard has caused the abnormal operation of insurance mechanism, so it is necessary to seek specific measures to prevent insurance moral hazard from the legal point of view in order to minimize its incidence.
(B) the manifestations and causes of insurance moral hazard
With the development of society, the manifestations of insurance moral hazard are more and more diversified, and the common manifestations are as follows: (1) fictional insurance subject matter; Deliberately creating an insurance accident; Deliberately violating the obligation of notification and guarantee; Deliberately fabricating an insurance accident that never happened. Moral hazard originates from people's self-interest nature, and people may make some illegal acts driven by interests. In addition, the characteristics of insurance mechanism and the imperfection of relevant laws and regulations lead to the widespread existence of insurance moral hazard. The causes of insurance moral hazard mainly include the following points:
1. Information asymmetry in insurance activities. Information asymmetry refers to the knowledge or probability distribution of certain events between two parties to a transaction or forming a cooperative relationship, in which one party has information that the other party does not know, and there is no symmetrical distribution among the corresponding economic persons. In social insurance activities, the insured's information about insurance products comes from the introduction of insurers and intermediaries. The insurer grasps the information of the subject matter insured through the insured and the intermediary. There is obvious information asymmetry between them.
2. The existence of adverse selection. The so-called adverse selection refers to the act of hiding information in advance. In the process of insurance, the insurer and the insured must achieve complete information symmetry and knowledge before signing an insurance contract. But in reality, this phenomenon of absolute understanding and confession does not exist, and neither of us can absolutely know each other's image. Therefore, when the insured is insured, he can often choose the insurance that is beneficial to him according to his actual situation, without letting the insurance company know all the information in this regard. Therefore, due to the asymmetry of information, insurance companies are always at a disadvantage. As a result, some policyholders are unwilling to inform the insurer of the existing risk status of the policyholder, and the insurer is in a passive position and has to bear the corresponding risks for the policyholder's behavior.
3. Legislation has insufficient regulation on relevant stakeholders. People's desire to pursue interests is endless. Driven by interests, some people will commit some illegal acts, which will lead to insurance moral hazard in insurance activities. In order to reduce or even eliminate the insurance moral hazard, it is very important to strengthen the supervision of relevant subjects. It is precisely because the existing legislation is not strong enough to regulate insurance moral hazard and punish insurance fraud and insurance fraud, which will lead to the widespread existence of insurance moral hazard.
China's insurance law is not perfect. China's current insurance law and its supporting regulations are still not very sound. There are legislative defects such as unclear insurable interest, unreasonable liability principle and lack of proximate cause principle. Especially in the aspect of restraint, the punishment for insurance fraud is not enough, which objectively condones the occurrence of insurance moral hazard.
The insurance moral hazard caused by information asymmetry and adverse selection in insurance activities is mainly caused by the imperfection of the relevant systems of insurance law. It can be solved by establishing and applying relevant principles and systems in the insurance law. It plays an effective role in solving the problems of information asymmetry and adverse selection in insurance activities by stipulating the insured's obligation to tell the truth in the insurance law and applying the presumption of fault liability after the insurance accident. We can also restrain all insurance stakeholders and prevent insurance moral hazard by increasing the punishment for insurance fraud. Therefore, in the final analysis, it is necessary to prevent insurance moral hazard from the perspective of legislation.
Two, China's "insurance law" in the prevention of insurance moral hazard defects
(1) The insurable interest is unclear
The principle of insurable interest is of great significance for preventing insurance moral hazard, but the legal provisions of insurable interest in China's insurance law are not clear. In particular, there is no detailed regulation on who and when the insurable interest should exist.
Who the insurable interest belongs to, most countries stipulate that it is the insured, and China's insurance law stipulates that it is the insured. I think that in property insurance contracts, there is a clearer insurable interest between the insured and the subject matter insured. Because, if there is no insurable interest between the insured and the subject matter insured, and the insured is the beneficiary of the contract, the loss of the subject matter insured will not only harm its interests, but also bring benefits to it. This will easily lead to moral hazard of the insured.
(B) the lack of provisions on the principle of proximate cause
China's Insurance Law only embodies the spirit of the principle of proximate cause in relevant provisions, and there is no explicit provision. Articles 23 to 25 of China's Insurance Law stipulate that after the occurrence of an insured accident, the applicant, the insured or the beneficiary shall provide the insurer with proof materials related to the nature, cause and loss degree of the insured accident. The insurer shall verify in time, and perform the insurance liability if it belongs to the insurance liability; If it does not fall within the scope of insurance liability, it shall issue a notice of refusal to pay compensation or insurance money to the insured or beneficiary? . The principle of proximate cause is the main basis for confirming the insurer's insurance liability. Correctly identifying proximate cause is of great significance for preventing insurance moral hazard. It is necessary to add clear provisions on the principle of proximate cause and its applicable standards in the insurance law.
(c) The principle of imputation is inappropriate.
According to the general principles of insurance, the principle of no-fault liability applies to the imputation of insurance liability: whether the actor is at fault or not does not affect the composition and commitment of civil liability. As far as the insurance field is concerned, it is based on the agreement of the insurance contract. After an insured accident, if the cause of the accident falls within the scope of insurance, then the insurer must bear the insurance liability. Whether the accident is caused by the fault of the insured, the insured or the beneficiary.
The principle of no-fault liability imputation can make the losses suffered by insurance accidents be compensated in time, which is conducive to protecting the interests of policyholders. However, due to the asymmetric information in insurance activities, the insurer can not obtain the relevant certificates and materials of the accident in time and accurately after the insurance accident, so it is difficult for the insurer to prove whether the insured intends to do so. In this case, the application of the principle of no-fault liability objectively increases the burden on the insurer and the insurance moral hazard.
The punishment for fraudulent insurance and other related acts is not enough.
In the Insurance Law, the insured, the insured and the beneficiary are mainly responsible for the breach of contract after fraudulent insurance. ? The benefits are commensurate with the risks? This is an old legal proverb, which means that you have to take considerable risks to get certain benefits. If the benefits outweigh the risks, it will inevitably lead to illegal behavior. The responsibility assumed after the implementation of insurance fraud is far less than the benefits obtained through insurance fraud, which will inevitably lead to moral hazard. In addition, the fact that insurance moral hazard exists widely in the insurance field now shows that it is not enough to prevent insurance moral hazard just by letting them bear the liability for breach of contract. Therefore, it is necessary to increase the penalties for insurance fraud and insurance fraud in the Insurance Law.
Third, legislative proposals to prevent moral hazard in insurance
(A) to further clarify the insurable interest
? People who have no interests have no insurance? The significance of insurable interest in preventing insurance moral hazard is self-evident. Insurable interest is specific and clear, which can prevent the insured from taking advantage of insurance moral hazard by using different understanding of insurable interest.
From the provisions of Article 22 of the Insurance Law, it can be seen that when an insurance accident occurs, it is the insured, not the bidder, who is really entitled to receive the insurance money. Article 12 of the insurance law stipulates that the applicant shall have an insurable interest in the subject matter insured? . It can be seen that the provisions of Article 12 and Article 22 of the Insurance Law are obviously inconsistent.
When does the insurance interest exist? According to Article 12 of the Insurance Law, it can be seen that there should be insurable interests when concluding an insurance contract. According to the general rules of Anglo-American insurance law, when the insurable interest exists varies with different insurance types. Property insurance contract and life insurance contract have the characteristics of compensation and payment respectively, which determines that the time limit of the principle of insurable interest in the application process is not the same. Among them, for property insurance contracts, it is generally required to have insurable interests in the subject matter of insurance from the time of insurance to the time of insurance accident. In contrast, when the principle of insurable interest is applied to the life insurance contract, it only requires a clear time point, and it doesn't matter whether there is insurable interest when the insurance accident occurs. Therefore, China's "Insurance Law" should draw lessons from the provisions of Anglo-American law to clarify when the insurable interest arises.
(2) Add the relevant provisions of the principle of proximate cause.
Because China's insurance law does not clearly stipulate the principle of proximate cause. The insurance law should clearly stipulate the principle of proximate cause and its applicable standards. According to the requirement of the principle of proximate cause, the key to identify proximate cause is to find the causal relationship that causes damage.
As for the applicable standard of the principle of proximate cause, the insurance industry generally recognizes the theory of direct action, that is, the cause that plays the most direct and decisive role in causing damage is regarded as proximate cause. If the insured accident causes the loss of the subject matter insured as a direct cause, the insurer shall bear the insurance liability. If the insured accident is not the direct cause of the loss of the subject matter insured, the insurer shall not bear the insurance liability.
(3) The system of presumption of fault liability is applicable.
Based on the principle of good faith, it is important to stipulate the obligation of the insured to tell the truth in the insurance law to solve the problem of adverse selection before signing the insurance contract caused by information asymmetry. But how to solve the moral hazard after the insurance contract is concluded caused by information asymmetry? This depends on the presumption of fault liability system.
In the process of insurance claims after an insurance accident, it is difficult for the insurer to prove whether the insured intends to do so. Reasonable distribution of the burden of proof to the insured through legal provisions can make them subject to corresponding constraints, which will undoubtedly help to make up for the insurer's information lag and prevent insurance moral hazard. For example, for common auto insurance fraud cases, because the insured and the auto repair factory often cheat insurance together, it is more hidden, which undoubtedly increases the difficulty of the insurer's investigation of the facts of the case, leading to unimpeded joint fraud. The application of the principle of presumption of fault liability shifts the burden of proof to the insured and increases the burden of proof of the insured, which will inevitably increase the difficulty of co-insurance fraud, thus curbing the occurrence of insurance moral hazard.
(D) the establishment of punitive damages system
Punitive compensation system plays an important role in preventing insurance moral hazard. First of all, by imposing a heavier economic compensation responsibility on fraudsters, their illegal acts can be punished, so as to better achieve the purpose of punishment. Similarly, to achieve the purpose of deterrence through punishment can prevent moral hazard from happening again. Secondly, the system has compensation function. When compensatory compensation is not enough to compensate the losses suffered by the insurer, punitive compensation can better safeguard the vital interests of the insurer. Third, the perfection of punitive damages system can encourage insurance transactions. Similarly, the application of this system in the insurance field can promote the normal conduct of insurance activities, because it makes potential fraudsters realize that it is more cost-effective to abide by the provisions of insurance contracts than to cheat insurance.
Precautions:
Jing Cheng. The emergence and avoidance of insurance moral hazard. Fujian Finance.2001(5). Page 37.
Editor Yin Tian. Legal supervision of China insurance market. Social science literature publishing house. 2000. Page 172.
Zhang Xinbao. Principles of tort liability law. Renmin University of China Press. 2005. Page 35.
Wei and Zou Guoxiong. On legal prevention of insurance moral hazard. An economist. 2002(3). Page 7 1.
References:
Yang Lin. Curb insurance fraud. China Insurance. 2005 (8).
[2] Zhang Huan. Theoretical analysis and empirical study on adverse selection of social insurance in China. Manage the world. 2006 (2)。
[3] Huang Haiji. The performance and influence of insurance information asymmetry. Insurance research. 2003 ( 12)。
And bears. Economic analysis of adverse selection and moral hazard in insurance field. Exploration of insurance theory and practice. Southwestern University of Finance and Economics Press, 2002.
8000-word graduation thesis 3: On the role of legal service in military political work
I. Introduction
With the development of China's legalization process and the gradual establishment of the socialist legal system, the legal construction of the army has attracted much attention. Among them, the vigorous development of legal services has directly promoted the better implementation of national policies and laws in the military, and is of great significance to implementing the Central Military Commission's policy of governing the military according to law, protecting the national military interests, and safeguarding the legitimate rights and interests of the military and servicemen. However, these are just some obvious functions of legal services. In fact, for the military, legal service, as an important part of judicial administration, is not only conducive to strengthening the political construction of our army and giving full play to its political advantages, but also plays an important role in implementing the policy of governing the army according to law, expanding the functions of political work, forming a joint force of political work, comprehensively improving its combat effectiveness and ensuring the completion of various tasks.
Second, the interaction between legal services and military political work.
(A) the demand for military and political work has given birth to the development of legal services.
With the policy of running the army according to law and the need of building an army ruled by law, legal services with military characteristics came into being in the army. 1In May 1995, the Regulations on Political Work of the People's Liberation Army of China made judicial administration, military security, military trial and military procuratorial work an integral part of military political work, and legal services were an important part of judicial administration. At the same time, the "Political Work Regulations" put? Leading judicial administration, managing lawyers, notarization and legal services? As an important duty of the General Political Department, leading and taking charge of legal services is one of the main duties of political organs at all levels. In this way, the legal position of legal service in political work has been established in the Political Work Regulations, the authoritative regulation of military political work. It can be seen that the demand of military political work has given birth to the development of legal services, and bringing legal services into the military political work system is conducive to strengthening the organization, leadership and healthy development of legal services in practice.
(B) The development of legal services has promoted the completion of political work tasks.
What is the * * * task of legal service and political work clearly stipulated in the Regulations on Political Work? We will crack down on illegal crimes within the armed forces and infiltration and sabotage activities by hostile forces and elements at home and abroad, purify and consolidate the armed forces politically and organizationally, protect the national and military interests by legal means, and safeguard the legitimate rights and interests of the armed forces and servicemen? . The determination of this task is determined by the nature of the legal service itself. Lawyers' work, notarization work and grass-roots legal consultation work provide various services for army building from the legal point of view, adapt to the needs of army building and promote the all-round construction of the army. These tasks are consistent with the direction of political work. Therefore, military political work cannot be separated from legal service, which is of great significance and role in strengthening military political work and realizing political work tasks.
Third, the working mechanism of legal service in military political work
(1) Opening up legal services and strengthening military political construction.
In the past, our army's legal service work had potential, and there was no clear organization and professional legal team, and there was no clear division of responsibilities among personnel. In case of legal problems, the demand for legal services shall be handled by the security department, the organization department, the cadre department and the publicity department. These legal problems are reflected in providing legal advice to the chief executive and organs, providing answers to law-related questions for officers and soldiers, coordinating and handling military and land disputes, participating in litigation mediation, legal publicity and education, etc. With the implementation of the policy of governing the country and the army according to law, the law has involved all aspects of the life of the country and the army. Relying solely on administrative means and channels, relying solely on the work of organizations, cadres, propaganda, security and other departments can no longer meet the needs of military political construction. Only by providing legal services can we meet the growing demand for solving law-related problems, improve the effectiveness of political work and give full play to the advantages of our military's political work.
(2) Strengthen legal services and implement the policy of administering the army according to law.
Managing the army according to law means managing national defense and army building according to law and bringing all aspects and links of national defense and army building into the legal track. Managing the army according to law is an overall, basic and long-term task in army building. The formation of the military laws and regulations system with China characteristics provides a strong support for running the army according to law. Running the army according to law is a systematic project. How can we find the breakthrough and breakthrough point to carry out our work according to law? That is to work through legal services. Legal service is an important aspect of implementing military laws and regulations, which plays a great role in governing the army according to law and effectively governing the army according to law.
(3) Strengthen legal services and form a joint force of political work.
Military legal service has an independent working object, task and business scope, which is unique compared with the work of security, organization, cadres, propaganda and discipline inspection in political work. However, legal service work does not exist in isolation, and it is mutually promoting and restricting with other professional work in political work. If we do it well, we can form a joint force with other political work. First of all, there is a relationship between legal service work and other work in political work, which is responsible for division of labor, mutual cooperation, mutual restriction and resultant force. It is a good enrichment of political work, and promotes the development of other aspects of political work, forming a joint force of political work, which is more conducive to the completion of political tasks. Secondly, legal services can also promote discipline inspection, organization, cadres, publicity, cultural work and mass work. Legal service work and other professional work can complement each other and form a joint force. If we apply the principle that the whole is greater than the sum of its parts in system theory to political work, we will certainly be able to do political work well and realize its tasks and functions.
(four) do a good job in legal services and strengthen grassroots political work.
Political work is the lifeline of our army and occupies a very important position in the construction and development of our army, and grass-roots political work is the most basic and concrete embodiment of the whole political work. The quality of grass-roots political work directly affects the generation of combat effectiveness of troops and plays a vital role in ensuring the party's absolute leadership over the army. Grass-roots political work must be based on law. At present, grass-roots political work is mainly based on the Outline of Army Grass-roots Construction. In the process of implementing this law, the importance of legal services is obvious. The legal service work should do a good job in the publicity and education of the outline, so that grass-roots officers and soldiers can establish the consciousness that the outline is the law, thus enhancing the consciousness of implementing the outline. Therefore, legal services should be geared to the grassroots and help them do a good job in management, training, financial management, education and legal publicity, and safeguarding rights according to law. Therefore, legal services play an important role in strengthening the overall construction of grassroots units and strengthening grassroots political work.
Four. Concluding remarks
In a word, the demand of military political work gave birth to the development of legal services, which in turn promoted the completion of political work tasks. Military legal service plays a very important role in military political work.
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