UNIFIED FAMILY COURTS

Much has been written about the potential success of unified family courts. Unified family court proponents share great optimism and enthusiasm for what they see as a solution to several of the problems facing court systems today. This enthusiasm should be applauded. As with any reform, however, unified family court advocates must stop to consider the possible drawbacks to the system that they propose; otherwise, they might end up with a system that is the same or worse than the one that they were attempting to fix. This article highlights several of the potential problems with unified family courts. It is not a condemnation of unified family courts per se; it is simply a suggestion that reformers proceed with their eyes open, taking time to consider the potential drawbacks of the unified family court system before using valuable resources for its implementation.     

辩论主义的嬗变与协同主义的兴起

在民事诉讼中,关于案件事实解明中法院与当事人的作用分担,存在两种对立的原则:辩论主义与职权探知主义。古典辩论主义以私法自治为根据,主张案件事实的解明应当由当事人承担责任,法院恪守不介入的原则并受此约束。随着社会以及诉讼观念的变化,诉讼不再被纯粹视为当事人私人的问题;发现案件事实、作出符合实体真实的妥当判决,被作为法院的一项责任的观念逐渐形成,从而导致协同主义理念的产生。协同主义认为,民事诉讼中对案件事实的探知,既不是当事人一方的责任,也不是法院单方面的任务,而是两者共同的责任;法院与当事人应当协同去发现案件事实,并在此基础上实现纠纷的妥当解决。     

Mental Health Court Outcomes: A Comparison of Re-Arrest and Re-Arrest Severity Between Mental Health Court and Traditional Court Participants

Mental health courts have been proliferating across the country since their establishment in the late 1990's. Although numerous advocates have proclaimed their merit, only few empirical studies have evaluated their outcomes. This paper evaluates the effect of one mental health court on criminal justice outcomes by examining arrests and offense severity from one year before to one year after entry into the court, and by comparing mental health court participants to comparable traditional criminal court defendants on these measures. Multivariate models support the prediction that mental health courts reduce the number of new arrests and the severity of such re-arrests among mentally ill offenders. Similar analysis of mental health court completers and non-completers supports the prediction that a "full dose" of mental health treatment and court monitoring produce even fewer re-arrests.     

Training of legal professionals in DNA evidence

The South African Criminal Legal System is based on Roman Dutch law. Court proceedings are led by a single presiding officer of the court. Prosecutors and defence advocates present the court with evidence in an adversarial manner. This system has inherent advantages and disadvantages and therefore the training of legal professionals in handling DNA evidence in court is important. The prosecutors resort under the National Prosecuting Authority and the defence advocates act independently or e.g. under the auspices of Legal Aid South Africa.Education curricula of legal professional do not include forensic science evidence. Principles such as evidential value in the forensic context are not addressed. Training of legal professionals with our Essential DNA Evidence™ Course has been a multiplier of forensic science knowledge in the legal profession in South Africa. We present prosecution and defence perspectives in an unbiased manner, compensating for the possible subjective interpretations of evidence that may be presented in court. Forensic evidence is subsequently carefully evaluated prior to being court presentation thus improving court efficiency, and allowing for a more focussed approach to the presentation of evidence. Approaches to the customisation of course content that adds value has been identified via evaluation of training programmes.Experience has shown that legal professionals have the ability to incorporate relatively complex scientific concepts into their legal arguments if provided with the appropriate training opportunity. Appropriate training in DNA evidence has made the court process more effective, both in terms of time and costs, and ultimately serves justice.     

Specialized Domestic Violence Courts

Abstract

The multimethod study assesses the perceptions of specialized domestic violence courts' processes with victims' experiences as the central focus. Perceptions of the traditional courts and specialized domestic violence courts are compared among victims, courtroom police, attorneys, judges and victim advocates. Domestic violence education among attorneys, judges, and victim advocates is also compared. Despite the intended improvements with the specialized court model, victims report similar problems in both court models. Safety and victims support among respondents is mixed. Professionals from the specialized court receive no more domestic violence education than those from the general court. Victims' and courtroom police recommendations are presented.     

法制现代化进程中的审判组织重构

审判组织改革是中国法制现代化进程的重要组成部分。探求其重构的实现模式 ,需要以体现审判组织的社会属性和社会功能为基本理念 ,对法院设置、审级制度、法院内部审判组织的结构 ,以及法院作为审判组织的整体运作机制等进行综合性的研究。在保持现有的四级法院构架的基础上 ,通过对各级法院职责的重新定位、调整审级制度、设立巡回法庭制度、理顺法院内部各职能部门间的关系等一系列措施来促进审判组织重构的多重价值目标的实现。     

关于人民法院改革的几点思考

本文认为 ,人民法院改革势在必行 ,并对人民法院改革的目标和要求提出了若干意见和建议 ,主张加强领导 ,逐步实现改革目标 ,建设有中国特色的审判制度     

Ethical Advocacy for Immigrant Survivors of Family Crisis

The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues. Informed and effective advocacy on these issues in family court can make life‐changing, and even life‐saving, differences for immigrants. More specifically, immigration issues are germane to family court because certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings. After describing these forms of relief, and the family court's role in immigrants’ access to them, this essay analyzes how ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings.

Key Points for Family Court Community:
• The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues
• Certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings
• The substance of immigration‐related findings in family court, and their ultimate affect on family stability, are consistent with the core family court goal of supporting safety, well‐being, and permanency for children and families
• Ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings

     

委托调解的制度要素

委托调解的正当性和制度功能已为司法政策和国家治理政策所肯定。委托调解的实效发挥有赖于其制度要素的合理改进与持续完善。法院的管辖范围和可适用的审理程序决定着其是否有权进行委托调解。委托调解人应保持组织型和个人型并存的格局,可依次采用共同选定、商请法院确定和法院依职权确定三种方式予以确定。适用委托调解的案件应首先具备"可调性",且不只限于简单民事案件。依职权启动委托调解不会使参加程序的强制变为接受处理结果的强制,且可缓和合意贫困化所带来的机制紧张。处理好立案审查和立案前委托调解启动二者之间的先后关系,立案前委托调解将不会影响到对当事人之裁判请求权的妥当保障。对委托调解之期限的长度确定、延长以及是否从法定期间中扣除离不开谨慎的考量。法院对委托调解协议负有合法性审查义务且依其只能制作民事调解书。委托调解结案可收取更低的案件受理费,但不能免除。     

“State ineffectiveness in deterring organized crime style homicide in Mexico: a vicious cycle”

Institutional weaknesses in the criminal justice system (limited court capacity and the increasingly sophisticated armament of splintering drug trafficking organizations) limit the effectivity of Mexican states to deter organized crime style homicide. Court capacity, expressed by increasing sentencing rates in states where the oral court system was institutionalized, remains insufficient against the post-2006 organized crime related homicide epidemic. The illegal arms market, combined with long-standing deficits in firepower between organized crime and municipal police forces, limit the state’s capacity to alter the arms balance toward policing forces. Taken together, limited court capacity and the tactical imbalance of weapons held by drug trafficking organizations create a vicious cycle which continually perpetuates state ineffectiveness to deter and punish organized crime style homicide.

     

美国州法院统一预算体制及其借鉴——以法院预算过程的内部组织为重点

1970年代以来,美国州法院体系逐步确立了理性、集中的预算管理体制.在法院经费管理领域导入科层模型的原因是多元的,既包括一些改革者意识到的优点,也包括一个可能并未充分意识到的制度环境.针对科层化的预算管理体制可能产生的缺陷,美国州法院体系采取了一系列的应对措施,这些措施的核心是创建一个可以吸引法院体系内部和外部的个人和机构共同参与的治理结构.美国州法院统一预算体制对于我国当前正在开展的法院经费保障体制改革具有两个方面的借鉴意义.     

Faith‐Based Programs for Reentry Courts: A Summary of Issues and Recommendations

In 2002, the Bush Administration directed the Department of Justice to include faith‐based organizations in its distribution of funds earmarked for programs targeting the prevention and treatment of juvenile delinquency and substance abuse. Among the initiatives most likely to be affected by this new policy are reentry court programs that endeavor to reintegrate juvenile delinquents into their communities by placing them within local neighborhood‐based programs. However, reentry court personnel and leaders of faith‐based organizations are likely to encounter numerous challenges as they try to establish appropriate programming. In this article, we discuss the current understanding of First Amendment jurisprudence governing the federal funding of faith‐based organizations and summarize key issues identified by a National Council of Juvenile and Family Court Judges' workgroup on faith‐based programming that are necessary for including faith‐based organizations within a reentry court's continuum of care. We also discuss several concerns that reentry court personnel and faith‐based organizations should consider as they seek to maximize the impact of their programs.     

RELYING ON THE UNRELIABLE: HOW A COURT RULE COULD ALLEVIATE THE PROBLEMS INHERENT IN THE NEUTRAL MENTAL HEALTH EVALUATION PROCESS IN CHILD CUSTODY CASES

Many states lack standards as to who should be conducting neutral mental health evaluations in child custody proceedings and what these evaluations should be comprised of. This will occasionally result in an unqualified evaluator giving a recommendation to the court as to which parent should receive custody of their child[ren]. This Note advocates for courts to adopt a court rule which specifically enumerates the qualifications of neutral mental health evaluators in the hopes of regularizing the evaluation process. The first part of the proposal addresses who should conduct evaluations by establishing the required credentials of the evaluator and minimizing the amount of evaluator bias by screening the process. The second part of the proposal focuses on the training needed before an evaluator may conduct an examination, as well as the amount of experience required.     

Bridging the Gap Between Prosecutors' Cases and Victims' Biographies in the Criminal Justice System Through Shared Emotions

Research on victims' encounters with prosecutors suggests that victims' rights have had a limited effect on victims' satisfaction with the criminal justice system. This study examines the victim‐prosecutor relationship with a focus on people who have lost a loved one to murder. The emotional tone dimension of Carol Heimer's case versus biography analysis proves helpful for explaining the gaps between prosecutors' responsibilities and victims' expectations. The data come from in‐depth interviews with thirty‐five participants, including twenty victims, three crime victims' advocates, and twelve criminal court professionals in Union County (pseudonym). The findings indicate that shared emotions (e.g., sadness, anger) represent a key mechanism for (1) connecting victims to prosecutors (and individuals to organizations) and (2) improving victims' experiences with the criminal justice system. Although victims' rights do not guarantee the opportunity for shared emotions, prosecutors often honored victims' desire for a close relationship and considered their input on case decisions.     

NEED TO BE HEARD: INCREASING CHILD PARTICIPATION IN PROTECTION MEDIATION THROUGH THE IMPLEMENTATION OF MODEL STANDARDS*

There are more than three million reports of abuse and neglect each year. Some children may enter the court system while others will voluntarily or by court order enter a mediation program. What these children have in common is these youths are often removed from their home and placed in foster or institutional care without ever expressing their wishes or concerns. This Note advocates for the adoption of model standards drafted to ensure universal and meaningful child participation. The Model Standards are set forth in detail and accompanied by useful tips on their implementation. Through the course of this Note, the benefits of child participation are outlined, as are the reasons most often given for denying children the opportunity to meaningfully participate. The Note concludes with an explanation of how the benefits derived from implementing these standards far outweigh any potential negative side effects.     

论刑事诉讼中的精神疾病司法鉴定

刑事诉讼中的精神疾病司法鉴定通常在＂有鉴定必要时＂启动,精神疾病司法鉴定人出席庭审,鉴定意见在法庭上接受质证,但是法官并不完全受制于鉴定意见。我国刑事诉讼中精神疾病司法鉴定属于职权型启动,当事人的相关权利保障不足,精神疾病司法鉴定的意见难以在庭审时接受充分质证,对精神疾病司法鉴定意见的采信缺乏统一的规则。应当加强我国司法机关运用职权启动精神疾病司法鉴定的义务,鉴定人原则上应当出庭,并规范法官对精神疾病司法鉴定意见的采信。     

关于法院拍卖采矿权的思考

采矿权是一个特殊的财产权，法院强制执行采矿权亦具有特殊性。在执行程序中，人民法院可否直接委托商业拍卖机构向社会公开拍卖采矿权，可否直接将采矿权人的采矿权通过民事裁定书裁定给债权人？拍卖采矿权是由国土资源主管部门主导还是由法院主导？对此，争议很大。上述问题的解决涉及对法院执行权性质和采矿权性质的认识，涉及对法院拍卖和权利转让关系的理解。     

论国际组织高级职员的豁免——从国际货币基金组织总裁卡恩案说起

国际组织豁免经历了从外交豁免到职能豁免的演变,直到联合国建立才真正确立了国际组织豁免的职能必要性理论。对于国际组织高级职员而言,豁免是指其不受一国国内法院的管辖。国际组织高级职员享有职能性豁免,为了履行组织职务、达成组织目标,其公务行为受到豁免的保护。在很多情况下,出于履行职能的需要,也会授予部分国际组织高级职员外交豁免,但即使是那些在享有职能性豁免的同时还享有外交豁免的国际组织高级职员,也只就其公务行为享有豁免,非公务性行为依然不受豁免的保护。国际货币基金组织及其职员只享有职能豁免,不享有外交豁免,其私人行为不能豁免于国内法院的管辖。     

Defence counsel in early modern Scotland: A study based on the High Court of Justiciary

This article explores the practice of those advocates who acted as counsel for defenders in Scotland in the High Court of Justiciary in the early seventeenth century. By 1587, defence counsel was confirmed as a ‘right’ in Scotland in every criminal court except the Privy Council. The advocates who acted as counsel were well educated and respected members of their profession, amounting to possibly forty-one per cent of the bar. They served their clients both in and out of court, and their services were vital: a defender was much more likely to be convicted if he did not have defence counsel. Their pleadings also help to illustrate the conservative nature of Scots criminal law. The way in which defence counsel developed and functioned can be seen as an example of the growing professionalization of the law and its institutions in early modern Scotland.     

公诉案件庭前审查程序重构之法理探析及初步设想

我国修改前后的两部刑事诉讼法,虽然均在公诉案件第一审程序中对庭前审查程序作出规定,但由于立法时对庭前审查程序的功能认识不够清晰,相关规定过于简单和粗疏。因此,有必要对庭前审查程序的改革问题加以深刻思考。鉴于目前对于庭前审查程序的研究多局限在具体实施问题的层面,在评析各家之说的基础上,对庭前审查程序重新进行定位,对其价值取向、理论原则等问题展开初步论证。最后提出重构我国公诉案件庭前审查程序的若干设想。