含混不清的“占有” 《物权法》草案“占有”概念之分析

<正>《中华人民共和国物权法(草案)》(以下简称《草案》)在第20章规定了"占有",共设有7个条文。这是我国民事立法第一次系统地对占有制度加以明确规定。在各种物权类型之处单设关于占有之规定,这本身就体现了物权立法向传统民法理论的靠拢,值得称道。然而,《草案》不仅只有6个条文,显然过于简单,而且立法者究竟在何种意义上理解"占有"并构造其基本规范也是一个值得追问的问题。本文拟结合《草案》的相关规定,以占有的概念和性质为中心,就占有制度的核心问题展开讨论,并进而检讨《草案》部分条款的得失。     

PRISONIZATION AS AN INHIBITOR OF EFFECTIVE RESOCIALIZATION

This study focuses on data collected from 267 incarcerated, male delinquents The intent of this report is to identify and discuss the possible impact of prisonization on the inmate—an impact that in fact may impede the resocialization goals of the formal organization. Prisonization is conceptualized as the degree of assimilation into the inmate contraculture, and the particular type of social role assumed by the inmate. The proposed consequences of this socialization process are conceptualired as opposition to the institution, the degree of priority placed on interpersonal contact with other inmates while incarcerated, and opposition to the legal system. The findings of this study suggest that prisonization is related to self-attitudes that are not conducive to effective reconciliation.     

INFORMED CHOICE AND EMERGENT SYSTEMS AT THE GROWTH EDGE OF COLLABORATIVE PRACTICE

Integrated interdisciplinary team practice evolves over time as collaborative lawyers encounter the limitations of their own skill‐set in helping clients to reach consensual resolution outside the courts. Team collaboration represents the evolutionary growth edge of the collaborative practice movement. Working in teams with financial neutrals and mental health professionals who act as coaches and child specialists, collaborative lawyers become engaged in an emergent learning system called into being to assist each couple through their divorce. All professionals working on a collaborative team case participate in the process from the beginning and share responsibility for helping the clients achieve the values‐based goals identified by them early in the process. This shared professional engagement in the divorce conflict resolution process gives rise to a need for agreed roadmaps and protocols, sophisticated planning and debriefing sessions, case conferencing, and careful attention to the quality of communications at the negotiating table. None of this can happen at a “best practices” level without mutual trust between and among the professionals and a culture of transparency and accountability. These characteristics emerge over time as a natural outgrowth of working in teams.     

THE FOSTER CARE OMBUDSMAN: APPLYING AN INTERNATIONAL CONCEPT TO HELP PREVENT INSTITUTIONAL ABUSE OF AMERICA'S FOSTER YOUTH

Children today are often abused while in foster care, undermining the theoretical goal of the modern foster care system: to create a temporary, safe, homelike setting to protect and nurture children who are unable to live with their biological parents due to various reasons such as abuse, neglect, or abandonment. Often this abuse is worse than the type for which they were removed from their parents’ care in the first place. First examining the reasons why this complex problem exists, this Note recommends an internationally based, innovative concept as a partial solution: the foster care ombudsman. This Note explains the concept of an ombudsman and demonstrates how it can be particularly helpful to foster children, highlighting existing child welfare ombudsman offices in California, Rhode Island, and New Jersey, as well as international approaches. It also illustrates how a foster care ombudsman can complement class action litigation of foster care abuse claims.     

CRIME AS AN OCCUPATION

Students of crime have traditionally stressed the uniqueness of the criminal world and have developed special concepts in their attempt to explain the functioning of this “special” domain. In contrast, others in the field have asserted that the concepts used to investigate the coventional world can also be employed to provide insight into its criminal counterpart. This sentiment has been particularly evident among those who have utilized the concept of “occupation” to analyze criminal behavior. Building on the “crime as work” perspective, this research illustrates that, similar to conventional occupations, criminal work is stratified by prestige and stereotyped by sex. Further, the data suggest that Davis and Moore's (1945) functional theory may be a useful explanation not only of the stratification of conventional work but of criminal occupations as well.     

人的安全保障义务理论研究兼评《关于审理人身损害赔偿案件适用法律若干问题的解释》第6条

一、安全保障义务的区分原则所谓安全保障义务,是指行为人如果能够合理预见他人的人身或者财产正在或者将要遭受自己或者与自己有特殊关系的他人实施的侵权行为或者犯罪行为的侵害,即要承担合理的注意义务和采取合理的措施,预防此种侵权行为或者犯罪行为的发生,避免他人遭受人身或者财产损害。安全保障义务有两种:其一,物的安全保障义务。凡是对某种物施加控制力的人,如果在控制该物时没有尽到合理的注意义务,致使所控制的物造成他人损失,即应对他人承担     

站在天平的两端 司法腐败的博弈分析

<正>好树结好果,坏树结坏果。——《马太福音第七章》问渠哪得清如许,为有源头活水来。——朱熹《观书有感》一、问题的提出及界定关于司法腐败,网上流传着这样一个故事:一中国律师和美国律师合办一案件在美国诉讼,开庭前中国律师对美国律师说,咱们怎么还不给法官送礼,再不送该输官司了。美国律师     

MEASUREMENT ERROR IN CALLS-FOR-SERVICE AS AN INDICATOR OF CRIME*

Several recent studies have used records of calls-for-service (CFS) to police 911 centers to measure crime at the address, neighborhood, and city level. This article examines the limitations of this “new” indicator of crime. After pointing out several types of error in dispatch records, we use data from an observational study of policing in 60 neighborhoods to examine empirically how these errors might bias CFS-based crime counts and discuss the consequences of such bias. We conclude with suggestions for future research on the validity of CFS as an indicator of crime.