破产原因的反思与解析——兼对《企业破产法》第2条的解读

破产原因是债务人是否被宣告破产的关键,其破产原因的法律界定影响着破产法维护社会经济秩序功能的发挥。从破产原因的一般理论出发,借鉴国外破产原因的立法规定,反思我国1986年破产法中的破产原因,进一步解析2006年《中华人民共和国破产法》第2条,将破产原因区分为不能清偿到期债务且资不抵债和不能清偿到期债务且停止支付两种,分别适用于债务人自愿提出破产申请和债权人提出破产申请的情况。     

Evaluation of the impact and effectiveness of Title XVI uncompensated services assurance--Health Resources and Services Administration. Rule related notice

The purpose of this notice is to solicit comments on an evaluation plan which has been developed to examine the impact and effectiveness of the regulations [42 CFR 124.501 et seq.) governing the provision of uncompensated services by health facilities obligated under Titles VI and XVI of the Public Health Service Act to provide a reasonable volume of services to persons unable to pay.     

Child support enforcement program; extension of services to Medicaid recipients and to former AFDC recipients--Office of Child Support Enforcement, HHS. Final rule

These final rules implement sections 9141 and 9142 of Public Law 100-203, the Omnibus Budget Reconciliation Act of 1987, which amended title IV-D of the Social Security Act (the Act). Section 9141, effective December 22, 1987, amended section 457(c) of the Act to require State child support enforcement (IV-D) agencies to provide appropriate notice and to continue to provide IV-D services to persons no longer eligible for Aid to Families with Dependent Children (AFDC) under title IV-A of the Act. The IV-D agency must continue to provide services and pay any amount of support collected to the family on the same basis and under the same conditions as pertain to other non-AFDC families, except that no application, other request to continue services or any application fee for services may be required. Section 9142, effective July 1, 1988, amended section 454 of the Act to require State IV-D agencies to provide IV-D services to families who receive Medicaid and have assigned to the State, under section 1912 of the Act, their rights to medical support and to payment of medical care from any third party, and to provide for distribution by the State of medical support collections under section 1912 of the Act.     

Grants for nurse practitioner traineeship programs--PHS. Interim final regulations

These regulations set forth requirements for grants to schools of nursing, medicine, and public health, to public or nonprofit private hospitals, and to other public or nonprofit private entities to meet the costs of traineeships for training nurse practitioners. A trainee must sign a commitment with the Secretary to practice full-time as a nurse practitioner in a primary medical care health manpower shortage area, designated under section 332 of the Public Health Service Act (the Act), for a period equal to 1 month for each month of traineeship support, after completion of the training. If this obligation is not fulfilled, a trainee must pay back traineeship support. The purpose of these regulations is to respond to the comments on the 1980 interim final regulations and to conform 42 CFR Part 57, Subpart AA, with the Paperwork Reduction Act of 1980, Pub. L. 96-511, and with the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35, which requires, among other provisions, that the Secretary provide, by regulation, for the waiver or suspension of the repayment obligation under certain conditions. In addition, other minor changes have been made and Office of Management and Budget (OMB) numbers are cited in those sections which have approved reporting and recordkeeping requirements.     

Evaluation of the administrative compliance costs and the impact of the inflation factor for Titles VI and XVI assisted facilities--Health Resources and Services Administration. Rule related notice; request for comments

The purpose of this notice is to solicit comments on an evaluation plan which has been developed to examine the impact of the administrative compliance costs and the inflation factor on health facilities obligated under Titles VI and XVI of the Public Health Service Act to provide a reasonable volume of services to persons unable to pay.     

Nanotechnology,Nanomaterials, and the Potential for Regulatory Action by USEPA

The U.S. Environmental Protection Agency (USEPA) has recently taken steps toward directly regulating the potential environmental, health, and safety risks associated with the manufacture and use of nanomaterials, and indications are that it is considering additional regulatory action. More particularly, the agency appears ready to start relying more on the exercise of its existing statutory authorities—including the Toxic Substances Control Act and the Federal Insecticide, Fungicide and Rodenticide Act—than on voluntary industry efforts to address these potential risks. As a result, companies that work with nanomaterials should pay close attention to USEPA's activities in this arena.     

论自然人破产制度的构建——对《民事诉讼法》第235条的探讨

我国现行的《民事诉讼法》第235条第五项规定,在自然人作为被执行人的案件中,裁定终结执行的依据是该被执行人“生活困难无力偿还借款,无收入来源,又丧失劳动能力”。事实上,这一条并不具有前瞻性,同时在实践中又由于其前瞻性的缺乏,导致许多执行法院在具体的案件中适用此条有困难,仅对类似案件裁定予以“终结本次执行程序”。这种无奈之举不但于法无据,而且是对终结执行本身目的的违背。     

Medicaid program; state allotments for payment of Medicare Part B premiums for qualifying individuals: federal fiscal year 1998--HCFA. Notice with comment period

Section 4732 of the Balanced Budget Act of 1997 (Public Law 105-33) amended the Social Security Act to provide for two additional eligibility groups of low-income Medicare beneficiaries for whom Medicaid payment can be made for Medicare Part B premiums during the period beginning January 1998 and ending December 2002. This notice announces the Federal fiscal year 1998 State allotments that are available to pay Medicare Part B premiums for these two new eligibility groups and describes the methodology used to determine each State's allotment.     

The Equal Pay Act: Using EEOC v. Verona Area School District in the Classroom

This article provides instructions for an engaging classroom activity when discussing the Equal Pay Act of 1963. Students are asked to consider how to approach pay decisions when hiring a new employee for their business. Issues arise when the new hire asks for a higher wage than a current employee of a different sex. Legal Environment of Business/Business Law, Business Communication, and Business Ethics are all tied together in a discussion of what it means to pay someone more or less money based on their sex.     

A proposal for a nonreinstatement rule in unfair labor practice cases involving patient abuse

Nursing home discharges of employees based on patient abuse raise a difficult issue when the motivating factor for the disciplinary action is union activism. A tension is created between the rights of employees to engage in protected concerted activity and the rights of patients to quality care. In 1974, Congress passed the Health Care Institutions Amendments, which granted to non-profit health care workers collective organizing and bargaining rights substantially similar to those which workers in other industries had enjoyed for decades under the National Labor Relations Act. Congress intended to give health care workers only that degree of parity, however, which is compatible with the provision of high quality patient care. The agency charged with enforcing the Act, the National Labor Relations Board (NLRB), has failed to distinguish employee misconduct in industrial settings from patient abuse in health care institutions when fashioning remedies for discriminatorily discharged union activists. The NLRB typically has ordered the reinstatement, with back pay, of the patient abuser as the patient's primary care-giver. This Article suggests that a front pay remedy is more appropriate to these cases because it protects the patient's right to be free from abuse without sacrificing employee unionization rights.     

Nondiscrimination on the basis of disability in air travel; compensation for damage to wheelchairs and other assistive devices. Office of the Secretary, DOT. Final rule

The Department is amending its rules implementing the Air Carrier Access Act of 1986 (ACAA) to lift an existing cap on the amount of compensation airlines have to pay to passengers for loss or damage of their wheelchairs and other assistive devices. The rule is intended to provide additional relief to passengers who use expensive assistive devices that are lost, destroyed or damaged in the course of airline travel.     

Medicare and Medicaid; eligibility for premium hospital insurance; state buy-in agreements--HCFA. Final rule with comment period

These rules-- 1. Set forth the requirements and procedures for certain individuals under age 65 to enroll and become entitled to Medicare Part A benefits through payment of monthly premiums; 2. Revise the rules on State buy-in for Medicare benefits to provide that-- After 1988, a State may, at any time, request a buy-in agreement or a modification of an existing agreement, including a modification under which the State may enroll a pay Part B premiums on behalf of a new buy-in coverage group--Qualified Medicare Beneficiaries (QMBs); and After 1989, a State may request and obtain a modification of an existing agreement, under which the State may also enroll QMB's in Part A and pay Part A premiums on their behalf. These amendments are necessary to conform HCFA rules to changes made by section 9010 of the Omnibus Budget Reconciliation Act of 1987 (OBRA '87), section 301 of the Medicare Catastrophic Coverage Act of 1988 (MCCA), and sections 6012 and 6013 of the Omnibus Budget Reconciliation Act of 1989 (OBRA '89). The purposes of the amendments are-- 1. To make it possible for certain disabled individuals to become entitled to Medicare Part A benefits that require payment of a monthly premium. The provisions apply to an individual under age 65 who loses entitlement to Medicare Part A without premiums because his or her earnings exceed the limit imposed for entitlement to social security disability benefits, on which Medicare Part A entitlement was based; and 2. To make available to States, for payment of premiums for QMBs, the administrative and cost efficiencies of the State buy-in procedures.     

选定法官与法定法官——由我国台湾地区选定法官制度谈祖国大陆民事程序改革

我国台湾地区于2003年6月5日公布了《民事诉讼合意选定法官审判暂行条例》,这在世界范围内是一项创新性制度,该制度反映出了对当事人程序主体地位的保障,充分尊重了当事人对程序的选择权。我国的司法审判方式改革已经进行了十余年,在我国《民事诉讼法》修改之际,通过借鉴我国台湾地区的司法制度改革,我国民事诉讼法的修改应提升公众对司法的信赖度、对裁判的信服度和接纳度,充分体现对人权的保障,在司法改革中坚持合宪性要求。     

Assessing viability of Finnish reorganization and bankruptcy firms

The objective of the Finnish Bankruptcy Act (FBA) is to give the assets of a non-viable firm to the bankrupted estate and divide them by the creditors of the firm (liquidation). However, the objective of the Finnish Company Reorganization Act (FCRA) is to recover a temporally financially distressed firm that is viable. In these acts, the viability concept is used to refer to a firm that is able to pay its financial obligations in the future. FBA is not efficient if a viable firm is filed for bankruptcy and liquidated. In the same way, FCRA is not efficient if a non-viable firm is filed for reorganization. The purpose of this study is to assess viability of Finnish firms filed for reorganization and bankruptcy. Logistic regression analysis is used to extract two measures for viability. The first measure is based on financial statement information only while the second one takes account of both financial and non-financial information. The estimation sample comprises data from 43636 viable and 98 non-viable firms. The resulted measures are used to assess viability of a sample of firms filed for reorganization and bankruptcy in 2004. In general, the results show that the greater part of firms filed for reorganization is non-viable whereas many of bankruptcy firms are viable. This reflects an occurrence of filtering failure.     

Federal Employees Health Benefits Program: limitation on inpatient hospital charges and FEHB program payments--OPM. Interim regulation with request for comments

The Office of Personnel Management (OPM) is issuing an interim regulation that implements section 7002(f) of the Omnibus Budget Reconciliation Act of 1990 (5 U.S.C. 8904(b)). The law sets a limit on the charges and Federal Employees Health Benefits (FEHB) Program benefit payments for certain inpatient hospital services received by a retired enrolled individual. This regulation defines a retired enrolled individual and sets forth the circumstances under which the limit on charges and FEHB Program benefit payments takes effect.     

执行强制管理制度若干基础理论研究——兼评我国《民事强制执行法(草案)》相关规定

强制管理制度是我国正在起草的《民事强制执行法(草案)》引入的一项制度。与强制拍卖相比,其执行标的不同。本文认为,为了使强制管理具有更为广阔的适用空间,应将其适用范围从不动产扩及一切财产,授权管理人通过强制管理获取经营利润偿债,并赋予强制管理与强制拍卖以平等、独立之地位。     

Cooperation in identifying and providing information to assist states in pursuing third party health coverage--Family Support Administration, HHS. Final rule

This final rule implements section 12304 of the Consolidated Budget Reconciliation Act (COBRA) of 1985 which requires each applicant or recipient to cooperate with the State in identifying and providing information to assist States in pursuing any third party who may be liable to pay for care and services available under State plans for medical assistance under title XIX, unless such individual has good cause for refusing to cooperate as determined by the State agency in accordance with standards prescribed by the Secretary. The regulations are applicable to the AFDC program in all jurisdictions.     

RETHINKING JUVENILE STATUS OFFENSE LAWS: CONSIDERATIONS FOR CONGRESSIONAL REVIEW OF THE JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT

Families struggling with a breakdown in communication, trying to control the behavior of an unruly child, or experiencing a crisis often look for outside help. Many families, particularly those without resources to pay for private support, turn to their local status offense system. Status offenders are young people charged with behavior unique to their status as juveniles such as running away, truancy, or disobedience. In 2007, Congress will begin to consider reauthorization of the Juvenile Justice Delinquency Prevention Act (JJDPA), the federal act related to status‐offender policy. By providing an overview of recent state status‐offense legislation and case law, this article identifies issues to be addressed by Congress in reauthorizing the JJDPA.     

Medicare and Medicaid programs; religious nonmedical health care institutions and advance directives. Final rule

This final rule implements requirements under the Balanced Budget Act of 1997, which set forth requirements for the new Religious Nonmedical Health Care Institution program and advance directives. This rule finalizes the Medicare requirements for coverage and payment of services furnished by religious nonmedical health care institutions, the conditions of participation that these institutions must meet before they can participate in Medicare, and the methodology we will use to pay these institutions and monitor expenditures for services they furnish. This rule also finalizes the rules governing States' optional coverage of religious nonmedical health care institution services under the Medicaid program. Additionally, this final rule addresses comments we received on the November 30, 1999, interim final rule and also makes minor changes to clarify our policy. Lastly, this rule incorporates a minor change to the requirements for advance directives.