QUESTIONS ABOUT FAMILY COURT DOMESTIC VIOLENCE SCREENING AND ASSESSMENT

Increasingly, family courts are seeking ways to focus limited resources on cases that require the most intervention, tailor court responses and dispute methods to each case, and account for the real differences among domestic violence cases. One of the means to that end may be the triaging or screening of cases. This article raises a number of questions about screening and urges that they be addressed by courts and communities that are considering whether and how to design a screening protocol. Issues include: How should we define domestic violence for the purposes of screening? Who should carry out the screening? How can we maximize the likelihood that we will fully assess the context of the violence in each case? How should we assess the risks or dangers inherent in the parties’ situation? How should a screening effort account for changing circumstances as a case proceeds through the courts? How can information gathered in a screening effort improperly impact subsequent decisions of the court?     

ROMANCING THE COURT

Problem‐solving courts, created at the end of the twentieth century, make court‐based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court‐based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem‐solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through the lens of specific examples from family court—the original problem‐solving court—leads to the conclusion that neither the structural issues that courts face, such as overwhelming numbers of cases, nor the momentous societal issues that problem‐solving courts have recently begun to shoulder can be adequately addressed through court‐based solutions. The factors that allegedly distinguish new problem‐solving courts from earlier exemplars, especially the family court, are both less unique and less successful than they have been portrayed by problem‐solving court enthusiasts. These factors alone fail to justify the expansion of problem‐solving courts without further evidence of their effectiveness. Moreover, the potential dangers inherent in problem‐solving courts are not theoretical. By examining illustrative examples from the history of the family court, the dangers become clearly apparent.     

SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS

This article proposes a model for the interdisciplinary colloboration of judges, attorneys, and evaluators prior to the writting of a court order for child custody evaluation in the formulation of specific psycholegal questions that guide the examination. These questions accurately reflect the concerns of the court, the attorneys, and the parties to the dispute while framing the evaluation questions within the behavioral sciences, suitable for evaluation by a mental health professional. Such a model best suits the court by providing information on specific, legally relevant areas of parenting, child development, and/or mental health useful to the trier of fact.     

“最先受诉法院原则”与禁诉令的博弈

"最先受诉法院原则"是解决国际民事诉讼管辖权冲突的原则之一。由于该原则强调受诉时间优先的法院优先享有诉讼案件之管辖权,实践中出现了当事人恶意利用此原则进而拖延、规避预期对自己不利的诉讼的情形。为了规避此类风险,英国等国制定禁诉令制度限制当事人恶意的"在先诉讼"。这不可避免地导致了"最先受诉法院原则"与禁诉令制度在实践操作中的冲突。在上述两公约关于"最先受诉法院原则"构建的基础上,结合实践中出现的禁诉令冲突、"意大利鱼雷"式诉讼等问题,讨论该原则在实践中运用的限制与发展,减少其在解决国际民事管辖权冲突中的机械性,使其更具合理性与借鉴意义。     

Mainstream medicine versus complementary and alternative medicine in the witness box: resolving the clash of ideologies

Mainstream medical philosophy and practice differ in many respects from those of complementary and alternative medicine (CAM), differences which are explored in this article. Because of a resurgence of CAM therapies, courts and tribunals will scrutinise CAM in more and more contexts in the future. Such court cases may require the resolution of conflicts between opinions of CAM and medical experts. This article considers how courts evaluate such opinions where experts hold conflicting ideologies or philosophical approaches, and addresses the following questions: Do the opinions of CAM practitioners qualify as "expert" opinions in court? How do the courts examine the basis of such opinions? Are they systematically given less weight than the opinions of mainstream medical practitioners? Will recent procedural reforms for hearing expert evidence make it easier for courts to resolve these issues?     

A Moral Appeal for Taxpayer Compliance: The Case for a Mass Media Campaign*

This paper examines the ability of the mass media to enhance compliance with the law by the use of moral appeals. Drawing on the moral development literature and the literature of mass communication effects, we set forth a model for designing mass media campaigns directed at improving compliance with the law. Tax compliance is the issue we analyze. While we determine that no appeal, however well-crafted, is expected to reform all tax offenders, and that some approaches are likely to produce less rather than more compliance, we identify hallmarks of a potentially successful appeal.     

芬兰行政诉讼制度述评

芬兰的行政案件由行政法院审理,行政争议的任何一方都能够作为原告起诉,起诉停止被诉行政决定的执行.行政案件传统上实行书面审,法院在审理案件中具有主动性.存在颇具特色的特别起诉制度.     

试论服务理念视角下的政府电子税务

电子税务是各级政府推行电子政务的一种体现,其宗旨是利用信息技术提高税收征管水平,降低征纳税成本,改善税收环境,为纳税人和社会各界提供优质的税收服务。它的实现方式是利用一切现有信息技术,打造全方位的一体化电子服务平台,不断提升服务质量和水平。从本质上,电子税务彰显了现代政府管理中的服务理念。本文从服务理念的角度就政府实施电子税务如何为纳税人服务、为税收管理服务、为基层服务、为机关服务、为领导决策服务等提出对策和建议。     

International legal issues on china’s recourse for cultural relics pillaged overseas: dilemma and way out - take the litigation on the auction of rat head and rabbit head bronze statues for example

Facing the dilemma on the recourse for Chinese cultural relics pillaged overseas, China shall get a clear understanding of the international legal situation, strengthen international communication and promote international compromise. Based on this foundation, China shall take rational, beneficial, and moderate legal actions to uphold and protect national rights. The recourse on the ground of international custom has been deemed as a failure by the view of the majority; the recourse in a foreign court will almost certainly encounter numerous obstacles in law that are very difficult to deal with, and the recourse in a national court will not only achieve the expected goals but also raise considerable disadvantages. If China hopes to retrieve the pillaged cultural relics by means of international treaty, it is necessary for China to conclude special agreements with relative states. The latter shall exercise best efforts to recover the cultural relics and return them to China at the expense of Chinese tax payers. On the other hand, there are two choices available if China hopes to settle the problem through general principles of law: One is to make an agreement with relative states, and the other is to authorize certain international tribunals to adjudicate the case according to the general principles of law. If the International Court of Justice (“ICJ”) is chosen, then the relative states can authorize the court to decide the case according to the principle of ex aequo et bono; however, the best way is to conclude an international arbitration agreement and renounce the application of certain general principles of law which might hinder the dispute resolutions. The other choice is to make unilateral legal activities with each other according to relative general principles of law, on condition that certain tacit agreement or understanding had been achieved between relative states. However, whether the above international legal methods can be used for the settlement of the problem, it depends on sufficient negotiation and mutual compromise between China and other relative states; the relative national authorities shall pay more attention to such aspects instead on unilateral declarations or sanctions.     

论适时审判请求权

适时审判请求权是诉权的重要组成部分。诉讼外纠纷解决方式的倡导、民事审限制度的规定和法院诉讼促进义务的强化皆从一定程度上促进了法院适时裁判。但若能基于案件性质和当事人需求等因素对某些案件予以优先审理,并对诉讼拖延提供事前预防和事后的救济措施,将会给当事人的适时审判请求权提供充分的保障。     

海南农垦土地权属管理存在的问题与对策研究

海南农垦土地权属管理取得了一定的成果,但也存在着土地纠纷调处管理机构设置不科学;土地权属纠纷较多,特别是场社纠纷中存在的部分历史遗留问题一直没有得到解决,＂退场纠纷＂时有发生,农场已经确权登记发证的土地被周边农民占用又引发新的纠纷导致土地确权工作难度较大,土地确权发证工作不到位等问题,因此,应当完善土地权属纠纷调处机制,有针对性地设置专门的土地纠纷调处机构,统一具体纠纷案件的调处部门,科学划分职责权限,着力解决农垦土地纠纷,在此基础上加强农垦土地确权、登记发证工作。     

公民纳税意识新论

提高公民的纳税意识不能只停留在空泛的宣传和片面强化税收征管权上 ,而应以建立良性互动的税收征纳法律关系为核心 ,从保证税法自身的品质、确认纳税人的基本权利、提高税收机关的执法水平等方面完善我国的财税体制。     

The judicial response to crime and the criminal: A utilitarian perspective

This paper examines the hypothesis that the sentencing decision of the criminal court is consistent with utilitarian principles and that the judiciary uses the length of incarceration as an instrument for the maximization of societal well-being. A theoretical model is developed, whose principal arguments are offender and offense attributes, resource costs, the availability of alternative sanctions, and the general crime rate. Four questions are considered: (i) How does a utilitarian court respond to a general increase in crime? (ii) How does the availability of alternative sanctions affect the length of incarceration ? (iii) How does a utilitarian court respond to offenders who are more likely to recidivate? (iv) How does the court respond to offenders who commit more serious offenses? The model is empirically evaluated, using cross-sectional data for the state of Georgia for individuals sentenced to prison in 1978 for a UCR index offense. The theoretical model provides few specific behavioral rules for the court to follow. Answers to the foregoing four questions are shown to depend upon both the efficacy of sanctions and the cost of the administration of those sanctions. It is not possible to predict, for example, how a utilitarian court should respond to a rise in crime or how it should respond to offenders who are likely to commit more serious offenses. The empirical analysis shows that, in fact, the sentence length varied inversely with the general offense rate, with the likelihood of imprisonment, and with the length of postprison probation. The evidence also indicates that sentences vary with the individual's original record but not with the offender's age or race. With the exception of possible gender bias, the court's sentencing behavior was consistent with utilitarian principles.     

中国劳动监察的困境与挑战——以劳动行政部门的屡屡败诉为例

最近,有些地方的审判部门出现了较多以劳动监察不作为提起行政诉讼的案件,且劳动部门败诉比例比较高。劳动监察是国家行政部门保障劳动法执行的行政手段,而目前劳动监察部门是该管的没有管好,又介入了劳动关系当事人,本应通过调解或者仲裁途径解决的劳动争议。现行法律上设置的可以通过劳动监察处理劳动争议以及劳动争议处理机制本身存在的缺陷、途径不畅是劳动部门败诉的深层次的因素。《劳动合同法》、《劳动争议调解仲裁法》不但没有解决这个问题,仍然沿用设置两种途径的模式解决劳动争议,中国的劳动监察部门可能将面临更多的败诉和困境。     

Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry

Cross-national case studies have indicated that compared to other economically advanced democracies, American methods of policy implementation and dispute resolution are more adversarial and legalistic, shaped by costly court action or the prospect of it. To what extent are lawyers responsible for creating American-style adversarial legalism? This article argues that while adversarial legalism stems primarily from enduring features of American political culture and governmental structure, the legal profession plays a significant independent role in promoting and perpetuating this mode of governance.     

Modelling appellate courts’ responses in motor injury disputes

Motor third-liability insurance is compulsory in the European Union. We examine the behaviour of Spanish appellate courts in the context of motor liability insurance and pay particular attention to four characterising features. Specifically, we investigate (1) how the appellate court interprets the rules for updating the financial compensation when the courts’ ruling is made in a different year to that in which the motor accident occurred; (2) the response of the appellate court when its legal medical evaluation differs from the court’s decision; (3) whether the appellate court modifies the criteria when the insurance company was not charged with interest for delaying payment in the first instance; (4) whether the fault allocated by trial courts is revised by the appellate court. We apply a multi-categorical selection mechanism to deal with samples that are potentially non-random. This allows us to separately consider the characteristics of victim’s and the insurer’s decisions to appeal. The results indicate that disputing agents have significantly different appeal functions, where insurers show a more effective and consistent behaviour than victims.     

论上诉考核的替代性机制

司法审查形式化的固有缺陷、便宜结案的办案模式及审级制度内在的行政化元素,为当事人通过上诉解决纠纷提供了心理暗示和路径依赖。而上诉考核机制的矫正功能和激励效用极为有限,不能从根本上解决这一问题。对此,可考虑引入上诉考核的替代性机制:一方面,构建相应的基础性保障机制,扩展司法实质性解决纠纷的范围和能力;另一方面,对审级进行功能划分,升格上诉程序品质以及建立诉讼成本分担机制,应更有利于实现纠纷解决的目标。     

构建中国本土化ADR制度的思考

在当代,随着社会主体在价值观和文化传统及利益冲突上的多元性,多元化纠纷解决机制的建立已经成为一个世界性的课题.各国通常把法院以外的各种非诉讼纠纷解决方式统称为替代性纠纷解决方式(ADR).ADR的研究和利用已经成为一种方兴未艾的时代潮流,并发展成为多元化纠纷解决机制的重要组成部分.当代中国的ADR与世界各国一样,处在日新月异的发展之中,同时,中国的ADR及整个纠纷解决机制还面临和经历着特殊的重构过程.西方国家成熟的ADR制度或许可以为我们提供某些技术设计层面的参考,然而,中国目前首先需要解决的问题是:我国在现阶段应用和倡导ADR制度是否合乎时宜?我们应该如何构建一个既兼顾法律文化传统又符合当今司法理念的中国化的ADR制度?将结合上述问题进行研究和探讨.     

Juvenile justice: a basic framework for the implementation of a functional juvenile justice system

The provision of appeal in arbitration law is a place where the judicial intervention can take place. One of the reasons many parties choose arbitration over litigation is the finality of the arbitral award even though a trial court may be more likely to deliver a legally correct result. The scope of appeal to the court in matters relating to arbitration is made very much limited by the statute in India. But despite several constraints and restrictions imposed by the legislature, this paper argues, the role of the judiciary still vastly remains interventionist in nature in some form or the other which is unacceptable.     

Reducing the cost of resolving intellectual property disputes

An important reason why intellectual property is far less effective for generating innovation than it could be is the excessively high cost of resolving disputes. This largely reflects the use of ordinary court arrangements to determine what are essentially technical issues. Compulsory expert arbitration, with legal aid for the party that doesnot appeal to the court from a ruling, is proposed as an alternative. A full-scale working model of such a system is shown to exist in the interference procedure of the United States Patent and Trademark Office. That no more than 4 percent of court appeals from decisions in this are even partially successful augurs well for the potential value of the arrangements proposed.