公司共同决策法律制度研究——以“职工满意度”为视角

职工参与共同决策是公司资本民主化和管理民主化的主要实现途径,起源于德国共同体文化的这一制度旨在保护职工权益、协调企业中劳资关系.寻找两者利益的平衡点,通过对不同企业的探索性调研,借助职工满意评价工具分析共同决策制度实施与职工满意之间的联系,探索我国公司法共同决策制度的引入模式.     

Parents as decision-makers--do the attitudes of Norwegian doctors conform to law?

This article studies whether the attitudes of Norwegian doctors regarding surrogate decision power in end-of-life care conform to legal rules, particularly as they apply to the protection of children. The article is based on a hypothetical scenario concerning a critically ill child, believed to be dying, presented to 406 doctors. The study indicates that doctors may permit parental/surrogate decision-making to a greater extent than justified by law, sometimes in contravention of the child's best interests, which should be a fundamental guideline in all decisions that concern children. This article suggests a need to improve knowledge of doctors concerning parents'/surrogates' right to participate in life-or-death decisions. We conclude that Norway needs a precedent decision from the Supreme Court that confirms the right of judicial review of end-of-life decisions, and which applies the principle of the child's best interests as a fundamental guideline in the final decision.     

The Dublin Regulation,mutual trust and fundamental rights: No exceptionality for children?

Mutual trust in the Dublin III Regulation is justified by the assumption that all Member States respect the fundamental rights of asylum seekers and that it is therefore immaterial which Member State processes any given claim. This justification has been questioned in light of the treatment of asylum seekers in some Member States. Nonetheless, in order to circumvent a Dublin transfer on fundamental rights grounds, the Court of Justice of the EU has held that the risked violation must meet the threshold for inhuman or degrading treatment in Article 4 of the Charter. Recently, the Court rejected the proposition that another Charter right—the principle of the best interests of the child—could block Dublin transfers of families with children. Through a child-rights analysis of the jurisprudence, this article explores the idea of exceptionality for children, concluding that there is potential for the best interests principle to trump mutual trust.     

Presumptions,Burdens, and Best Interests in Relocation Law

The pure “best interests” approach to relocation law is a failure. It is unpredictable and expensive, increasing conflict and discouraging settlement. The “fundamental questions” proposed by Parkinson and Cashmore in their article will not reform the law. Real reform will require the use of presumptions or burdens to guide best interests. “Presumptions” are not “rules,” but only starting points. No simple presumption “for” or “against” all relocations can be justified, but there are large categories of cases that do warrant presumptions: interim moves, unilateral relocations, shared care, and predominant primary caregivers. The first three involve presumptions against relocation, while the last—the largest category—warrants a presumption that relocation is in the best interests of the child, unless the contrary is proved. There will remain a small minority of in‐between cases where none of these presumptions will operate, recognizing the limits of our general knowledge. It is time to move the relocation reform debate beyond pure “best interests,” to the next stage, to a serious discussion of which cases warrant presumptions, and of what strength.

Key Points for the Family Court Community
• Pure best interests approach to relocation law is a failure
• Presumptions or burdens needed to reform the law, but not just “for” or “against”
• Presumptions are identified for four categories of relocation cases: interim moves, unilateral relocations, shared care, and predominant primary caregivers

     

Re-Evaluating ‘Best Interests’ in the Wake of Raqeeb v Barts NHS Foundation Trust & Anors

In Raqeeb v Barts NHS Foundation Trust, the latest of a number of cases concerning whether a child can travel abroad for treatment that doctors in the UK do not consider to be in their best interests, the High Court held that the hospital had acted unlawfully by failing to consider the child's rights under EU law when refusing to allow her to travel. Although this derogation could be justified on public policy grounds, as such treatment was, on the facts, in her best interests, no further interference with her rights was justified. In making this finding, the court recognised the ‘stress’ that such a case placed on the best interests test, lending weight to the argument for moving instead to a risk of significant harm threshold for judicial intervention in parental decisions, which better accounts for legitimate differences of value and strikes a better balance under Article 8 ECHR.     

HOW JUDGES DECIDE WHETHER SOCIAL PARENTS HAVE PARENTAL RIGHTS: A FIVE‐FACTOR TYPOLOGY

Courts have issued conflicting rulings regarding the rights (e.g., custody, visitation) and responsibilities (e.g., child support) of non‐biological gay parents. This analysis establishes a typology of five factors that most commonly influence judges' decisions. These factors include: interpretation of parenting statutes, legislative intent, parental intent, legal documents establishing parenthood, and the child's best interests. Despite these common themes, there is still much discrepancy among court rulings. Based on this analysis, there are steps parents can take to protect their legal rights and living arrangements. Finally, policy suggestions are offered for courts and lawmakers. These legal actors can take steps (e.g., clarifying statutes) that would provide certainty for families in case of parental separation or the biological parent's death.     

Speaking for Themselves: Hope for Children Caught in High Conflict Custody and Access Disputes Involving Domestic Violence

The Speaking for Themselves (SFT) project sought to enhance the physical, emotional, and psychological safety of children exposed to domestic violence and high conflict custody and access disputes. Children were provided with both a trauma therapist and a lawyer, in an attempt to ensure their well-being while providing decision-makers with reliable and authentic information about these children’s circumstances. This project was an attempt to balance the “best interests” approach applied in family law decision-making with the value placed on a child’s right to be heard, an approach espoused by children’s rights advocates. This article presents the SFT philosophy, model program, and evaluation results.     

Medical decision-making for incapacitated elders: A "therapeutic interests" standard

Some older individuals lack sufficient present cognitive and/or emotional ability to make and express autonomous decisions personally. In those situations, health-care providers routinely turn to available formal or informal surrogates who often must apply the best interests standard in making decisions for the incapacitated person. This article contends that defining the best interests standard of surrogate decision-making for older adults in terms of optimal or ideal choices (truly the patient's "best" interests) frequently sets out an unrealizable goal for surrogates to satisfy. Instead, a decision-making standard based on the incapacitated person's "therapeutic" interests is more realistic and hence more honest to adopt and apply from legal, ethical, and medical perspectives.     

GRANDPARENT VISITATION RIGHTS

In recent years, legislators in all fifty states have given grandparents rights to petition for visitation privileges with grandchildren that can be enforced over parental objections. Grandparent visitation rights reflect an effort to protect meaningful relationships children enjoy with nonparental caregivers, enlist the assistance of extended family when the child's nuclear family is disrupted, and defend the interests of grandparents themselves. This psycholegal analysis explores the direct and indirect consequences of grandparent visitation statutes for family functioning. Statutory provisions are summarized, and the effects of these statutes are evaluated in light of what is known about the role of grandparents in child development, how courts evaluate children's "best interests" in grandparent visitation disputes, and how these statutes can alter family functioning in informal ways. The authors conclude that there are risks as well as benefits to children and families in grandparent visitation statutes, and suggest directions for procedural and statutory reform.     

TRADE‐OFFS IN FORMULATING A CONSISTENT NATIONAL POLICY ON ADOPTION*

Just as the courts must consider the trade‐off between the best interest of the child and parental rights in involuntary termination of parental rights, policy on international adoption must consider the trade‐offs between the best interest of the child and the long‐term interests of the nation. We argue that countries that suspend international adoptions do not maximize social welfare. A consistent national policy to maximize the well‐being of the children and society at large would be to devote resources today to the oversight of international adoption in accord with child protections under the Hague Convention, while at the same time developing a domestic system of care that provides for the physical and developmental needs of orphaned children in the context of permanent families.     

涉外亲子关系推定与否认法律适用研究——兼评我国民法（草案）第九编第六章的有关规定

现代亲子关系的立法理念是重子女权利与自由,亲权制度设立的目的更多的是父母双方对子女的义务与责任而非权利;与此相适应的基本原则是子女权利平等,保护子女最大利益及兼顾父母利益三大基本原则;针对我国民法典草案第九编第六章涉外亲子关系立法的缺陷,阐述增设我国涉外亲子关系确定与否认法律适用的必要性。     

Law,psychology, and children

Society's treatment of children and families is guided by the premises that children lack the ability and/or the capacity to be autonomous directors of their own lives and that the private autonomous family is best suited to provide for the best interests of children. These premises are based on two assumptions: (a) that parents will act in their children's best interests, and (b) that parents possess the maturity, experience, and judgment required to make life's difficult decisions, which children lack. We explore these premises and assumptions along with the concept of the best interests of children and the relationship between children's capacities and children's rights. We conclude that collaboration between legal scholars and social scientists will enhance the likelihood of more informed decision making about these issues.Appreciation is expressed to Sarah L. Cook, without whose assistance this special issue would never have been completed.     

A Better “Best Interests”: Immigration Policy in a Comparative Context

This conceptual article examines the role and limitations of the best interests standard in international and domestic policy, with a particular focus on how the standard is implicated in the treatment of unaccompanied minors in the United States. Motivated by emergent interdisciplinary scholarship on global youth and informed by a comparative consideration of best interests across other professions, we propose a new model of best interests. This model calls for a multidimensional recognition of youths’ family‐, community‐ and decision‐making contexts; acknowledgment of youths’ rights; and a commitment to speaking with, rather than for, young people. What results is a novel and dynamic understanding of best interests with relevance to scholars, practitioners, and policymakers.     

The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance

This article addresses ‘statutory wills’ executed under the Mental Capacity Act 2005 (MCA) for persons with impaired mental capacity. The article provides an overview of the historical development of statutory wills, before exploring their rising contemporary significance. It considers the shift from the previous ‘hypothetical substituted judgment’ test to the contemporary ‘best interests’ orientation of the MCA. The article assesses the problems that the best interests approach raises in this area, and its (in)compatibility with the right to equal recognition before the law under the UN Convention on the Rights of Persons with Disabilities, arguing that the pervasive reach of best interests in contemporary mental capacity law requires reconsideration. The paper concludes by suggesting that a more limited framing of the power to execute statutory wills is required in order to appropriately balance the rights of individuals with disabilities with practical considerations around the distribution of assets on death.     

Judicial decision-making in family court involving children with autism spectrum disorder

The prevalence of autism spectrum disorder (ASD) in children and adolescents has increased over the past decade. Consequently, the courts and experts are more likely to be exposed to these children whose needs are highly heterogeneous. The present study aims to document judicial decision-making about children with autism spectrum as well as the parenting recommendations made by experts involved in these cases. There were 104 court decisions reviewed in Quebec over the past ten years. The results show that 85.6% of the decisions included a child custody assessment and that judges are more likely to order primary care to mother (56%). However, shared parenting (27%) and primary care to the father (17%) were also ordered in disputes involving an autistic child. Bivariate analyses revealed that challenges with parental monitoring and supervision were associated with court-ordered parenting arrangements. The present study revealed that a child custody assessment as well as father custody are more often observed than in the general population. This study highlights the need for further research to shed light on the best interests of children with ASD following the separation of their parents.     

Children's Rights to Representation: A Comparison Between Sweden and England

In both England and in Sweden, the approach to a child's rightto representation differs between public law cases and privatelaw cases regarding legal custody/parental responsibility, residenceor contact. This article discusses the basis for this distinction,and how far it accords with the best interests of the child.     

Medically mediated reproduction: posthumous conception and the best interests of the child

Advances in medical technology have provided the means for posthumous reproduction to become a foreseen and intended event. This "medically mediated", "non coital" form of reproduction raises a number of esoteric legal and ethical issues, and has much to teach us about broader issues of personal autonomy, parenthood, gender relations, family structure and the best interests of the child. In this article the author, drawing on recent Australian jurisprudence, argues that the best interests of the potential child should be the primary consideration in any case involving posthumous conception. Drawing heavily on the normative foundations provided by international law, the author attempts to identify and clarify the interests of the child relevant in the context of posthumous conception. The author concludes that a denial of access to treatment, on the basis that treatment is contrary to the best interests of the child, has no sound basis. The current treatment of the interests of the deceased and surviving partner and the interests of the child as conflicting dichotomies fails to recognise the inherent logic in converging these interests. It is only in stripping away this discriminatory fa?ade that one comes to recognise that the promotion of the rights of the deceased and surviving partner is likely, in many cases, to enhance the best interests of the child.     

文化遗产权利的公益透视

对于公共利益的探讨成了时下学界关注的热点问题,但鲜有学者研究文化遗产权。试用热点问题的内容来讨论冷门话题,首先,对文化遗产及文化遗产权作了一大致介绍;其次,梳理了一下与文化遗产权有关的公共利益理论,并用现有的公益理论、从公共利益层面来解析文化遗产权,探讨其公权属性;最后,简单谈了一下公益冲突理论对于文化遗产权保护的启示。     

Ambivalence, Contradiction, and Symbiosis: Carers' and Mental Health Users' Rights

This article explores the emergence of separate rights for carers and psychiatric service users. Although political rhetoric and policy documents largely assume symbiosis between carer and cared-for person, increasingly the law reflects that their rights and interests may conflict and operate in opposition one to another. This article examines the social and policy factors that lie behind these developments and disentangles some of the ambivalences, contradictions, and symbioses that characterize this area of law. While service users' rights in relation to decisions about their care have emerged from the shadow of family rights, carers' rights to community support services have emerged as an adjunct to service users' rights. The article explores the development of the rights paradigm in promoting the welfare of mentally disordered people and their carer, and the current limits of separation between their respective entitlements.     

Fostering permanency of children in out-of-home care: psycho-legal aspects

Over the past 20 years increasing interest has been given to children's rights that grant special protections to children living apart from their biological parents. The Adoption Assistance and Child Welfare Act of 1980 was promulgated to prevent unnecessary removal of children from their original families and to ensure permanency when return to their families could not be secured. The psychiatrist's role in this process has been to ensure that effective interventions occur prior to the child being removed from home and that every effort is made to return the child to his or her family of origin once placement has been made. In the event that the child cannot return home, the psychiatrist can assist the court by providing grounds for termination of parental rights and by otherwise ensuring that the child's best interests are protected.