Guarding the Law

Of late, many journalists who write successfully on socioeconomic and production issues have begun addressing legal issues as well. Breaches of the law, of legal order, of labor and state discipline, drunkenness, and other negative phenomena—these urgent problems are raised in many journalistic works that would not seem to be directly connected to the topic of law. You may perhaps have also noticed that the press is taking more interest in the work of the procuracy and its agencies….     

Child support enforcement program; state plan requirements, standards for program operations, and federal financial participation--Office of Child Support Enforcement, HHS. Notice of proposed rulemaking

This proposed rule would implement part of the paternity establishment provisions contained in section 331 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and amended by section 5539 of Pub. L. 105-33, which impose new statutory requirements for a State's voluntary paternity acknowledgement process and require the Secretary to promulgate regulations governing voluntary paternity establishment services and identifying the types of entities other than hospitals and birth record agencies that may be allowed to offer voluntary paternity establishment services. States will be required to adopt laws and procedures that are in accordance with the statutory and regulatory provisions. These proposed regulations will address these procedures and related provisions.     

Domestic violence and criminal justice training needs of social services workers

Domestic violence is a multifaceted problem that requires various agencies to work together to serve victims. Among other agencies that are involved in this collaborative effort, criminal justice officials must work with social services workers to ensure that cases are handled effectively. At the root of this collaborative effort, it is natural to question whether various parties have the knowledge needed to effectively respond to specific cases of domestic violence. In this study, attention was given to whether social workers possessed enough knowledge about various aspects of domestic violence, including information required to process domestic violence cases in the criminal justice system. In all, 186 social services worker supervisors in the Commonwealth of Virginia were asked to rate the level of knowledge they believed social services workers had regarding specific domestic violence topics with the level of knowledge workers they believed social workers needed regarding each domestic violence topic. Findings suggested that social services workers might have more problems dealing with the interpersonal nature of domestic violence cases than they do with the legal issues. At the same time, the supervisors suggested the workers knew less about specific legal options than they needed to know. Based on this, the authors suggest changes in training for all human services workers, including criminal justice officials and social workers.     

Statutory Nuisance: The Sanitary Paradigm and Judicial Conservatism

Despite its long history, statutory nuisance law is still consideredimportant in dealing with localised environmental problems.But it is an area of law that is now beginning to creak—theresult of both its historical origins and the attitude of contemporaryjudges to its modern application. Key recent decisions of theBritish courts are examined, and the judiciary is shown to haveadopted an unduly narrow approach and one that is based on amisinterpretation of legislative intention. A detailed examinationof Parliamentary debates in the middle of the nineteenth centuryduring the development of statutory nuisance laws shows thatthe concept was promoted as being broad, flexible and expansive.Modern courts have singularly failed to adapt statutory nuisanceto contemporary needs, a lost opportunity since the statutorynuisance regime can provide an effective means for local governmentto deal rapidly with environmental problems as well as an accessibleremedy for the private individual.     

《合同法》预期违约阻却机制之建构评析

预期违约成立后,可因法定事由而发生违约属性的消解,从而构成预期违约的违约阻却。我国《合同法》在经由不安抗辩权机制发生的特殊预期违约制度中设定了预期违约阻却机制,其机制设定模式缺乏严谨,体系亦欠完备,有待补充与完善。     

城镇规划区违建执法困境及其解释——国家能力的视角

既有理论框架难以全面解释违建执法的困境.实际上,违建执法的困境反映执法领域国家能力的不足.从执法的结构和过程看,国家能力不足表现在多个层面:执法机构的"孤岛现象"普遍,不同机构之间难以有效合作;一线执法人员的素养欠缺,且其工作难以被执法机构有效考核;执法人员在进入社区空间、处理执法事务时受阻严重.由于国家能力的不足,执法人员常常接受执法对象的讨价还价,违建执法表现出"日常惰性—专项治理"的循环结构,强力执法与违法不究处于共生状态.改善社会治理,需要在执法领域强化国家能力,需要从执法机构、执法人员及其与社会的互动等多方面着手.     

Key agent and survivor recommendations for intervention in honour-based violence in the UK

This paper concerns recommendations for intervention in honour-based violence (“HBV”) as recommended by individuals who face such violence in their everyday lives. Utilising data extracted from interviews conducted with 30 key agents and 8 South-Asian female survivors in the UK, this paper will argue that UK public agencies are struggling to cope with how to respond to HBV. This is despite the UK government recognising shortcomings in the support for victims in the House of Commons Home Affairs Committee report in 2008. In particular, participants identified that (a) the police, healthcare, and social services are particularly poor at supporting victims; (b) public sector workers require appropriate training and awareness on HBV; (c) education on HBV and forced marriages is absent in schools, colleges, and universities; and (d) more needs to be done to engage and educate communities about HBV and where victims can access support.     

Home health agencies: targets of anti-fraud and abuse investigations

Increased health care fraud and abuse investigations could result in home health agencies, and other targets, becoming politically acceptable casualties of war in the battle to balance the federal budget. To protect themselves, home health agencies would be well advised to conduct internal fraud and abuse audits on an annual basis and to develop corporate compliance plans (see Newsletter, Vol. 9, No. 7, July 1994, at 16, and next month's issue, which will discuss corporate compliance programs as well as the OIG's new voluntary disclosure program). In addition, purchasers of home health agencies should be especially vigilant of fraud and abuse problems during the due diligence phase of the acquisition and, if problems are discovered, should consider whether voluntary disclosure to the OIG and settlement of any resulting claims is an appropriate condition of closing.     

“Behave Like Enraged Lions”: Civil Militias,the Army and the Criminalisation of Politics in Indonesia

Since the end of the authoritarian New Order regime in May 1998, Indonesia has embarked upon a difficult journey towards democracy. One of the key questions raised by the rise of social and political violence in both Java and the Outer Islands since President Suharto's resignation from power is that of the wearing away of the state's monopoly of the means of violence and of its legitimate uses. But the process of the criminalisation of both state agencies and political parties is much older than one would have it. It begun during the late colonial period and gained momentum during the war of independence, in the late 1940s, when army units had to engage in extortion and smuggling to cater for soldiers' needs. Under the New Order, this beam of relationships between the police, the army and criminal gangs was given an official recognition of some sort, hence quasi-legal protection, through the creation of the “System for the Protection of the Environment” (Siskamling). This “system” enabled many petty criminals from the red light districts to join civil and para-military militias and even, at times, to enter public administration. Post-Suharto Indonesia inherited these criminalised “grey areas” between state agencies and the underworld, where one would find numerous masters of violence – people for whom violence is both a way of life and a way of making a living.     

Hurricane Sandy: Environmental Impact and Agency Efforts

In the aftermath of Hurricane Sandy, federal, state, and local agencies have begun to rebuild the City of New York. This article explores the various environmental impacts caused by Hurricane Sandy and government response. But beyond immediate hazard mitigation, government agencies have begun to consider the incorporation of hard and soft infrastructure to mitigate storm surge generated by future storms. This article suggests that while soft infrastructure would produce the smallest environmental impact, compared to other proposals, its integration into the city's ecosystem must be done prudently, especially in the borough of Staten Island.     

完善我国公共服务建设对策刍议

改革开放以来,我国在建设公共服务体系,推动公共服务改革方面取得了很大成就,但仍然存在着公共服务的供给结构不平衡,对社会性公共服务投入不足,公共服务显失公平以及公共服务监管有待改善等问题。本文分析了公共服务体系存在的问题及成因,并在此基础上提出了相应的对策和建议。     

Medicaid program: outstation intake locations for certain low-income pregnant women, infants, and children under age 19--HCFA. Interim final rule with comment period

This interim final rule interprets the statutory requirement that State Medicaid agencies must provide for receiving and initially processing Medicaid applications by certain low-income pregnant women, infants, and children under age 19 at locations other than those used for the receipt and processing of applications for Aid to Families with Dependent Children (AFDC). The statutory requirement also provides that the application form for these individuals must be different from the application form used for AFDC. The basis for the rule is section 1902(a)(55) of the Social Security Act, as added by section 4602(a)(3) of the Omnibus Budget Reconciliation Act of 1990.     

跨行政区水环境管理立法研究

我国已经进行了许多水环境管理的立法,这些立法在我国的水环境管理中发挥了重要的作用;然而,我国的水环境管理立法也存在许多问题,包括缺乏完整的跨行政区水环境管理的政策、法规体系不健全、管理制度不完善、管理体制不能适应实际管理的需要和对法律的执行缺乏公众监督机制等。解决这些问题,需要改变目前的一些立法原则和制度安排。主要包括:制定全面系统的跨行政区水环境管理的政策;健全跨行政区水环境管理的法律、法规体系;完善跨行政区水环境管理制度;理顺跨行政区的水环境管理体制;建立完善的公众参与机制;转变观念,与时俱进,建立一个真正的良治社会。     

论行政主体义务的法律意义

行政主体义务对行政法关系乃至于行政法治的走向起着决定性作用,它与行政法中的"权利"和"权力"具有同等重要的地位。然而,在我国行政法学界历来重视对后两者的研究而忽视了前者,没有给行政主体义务以科学的定位,这不能不说是行政法学理论的一大缺憾。行政主体义务的成立,必须有法律或职权上的依据,有行政法上的义务形态,有行政法上的权利主体,有完成义务的行为能力;行政主体义务在法律表现上有其独特之处,它是一个复杂的义务链条,是管理义务与服务义务的统一,是积极义务与消极义务的统一,是职权义务与行为义务的统一,是法规义务与契约义务的统一;行政主体义务对行政职权定"责",对行政法关系定"性",对行政行为定"量",对行政救济定"度"有重要的法律意义。     

中国传统的司法和法学

近来祖国大陆的法学界流行着两种对于中国传统的批评:其一指责中国传统司法者不遵循法律和先例,仅仅就事论事,凭天理人情作成判决;其二声称中国传统文化里几乎没有法学可言。二者都与事实不符。第一,中国自秦汉时起,法律已极繁多,在有明文可以适用或有成案可以比照的情形下,司法者都乐于遵循,不会自找麻烦另寻判决的依据。如果没有法律或成案可用,任何法制里的司法者都该先仔细分析案情(“就事论事”),然后探索法的精义(“天理人情”)而作成一个合乎公平正义的判决;中国传统司法者的做法并非例外。第二,中国历代都有许多学者不仅以纯理性的观点和方法对于当代的法律加以注释、批详,并且从历史背景和社会经验中去深究其渊源、目的和效能,以及法与其它社会规范的关系、法的正当性,法律条文不足时应该如何补救等法学上的重要问题,留下许多著作,对于这些问题提出了精辟的见解。只因他们的观点、方法和所用的语言及陈述方式与近人习见的不同,所以被忽略了。中国传统法制自成一系,与世界另几个重要法系并立,各有短长。如要加以检讨,应该先对它作一番整体的、深入的研究;如果想用另一法系的某些规定作为他山之石以改善中国法制,则更须对那些规定甚至整个法系作一番同样的研究,看清了二者的优劣,慎为取舍,不可以轻易地将中国目前的问题一概归咎于传统,更不该盲目地仿效他人。     

Civil asset forfeiture, equitable sharing, and policing for profit in the United States

Purpose

Critics of asset forfeiture claim that forfeiture laws create financial incentives that inappropriately influence police behavior. The present study examines the relationship between measures of the financial incentive and legal burdens for civil asset forfeiture on federal equitable sharing payments to local law enforcement to determine whether police behavior is affected by different statutory incentives for forfeiture activity.

Methods

Using LEMAS and DOJ forfeiture data, this study addresses some of the limitations of previous research by using a multi-year average for forfeiture activity, an improved measure of financial incentives for law enforcement, and multiple measures of statutory burdens to law enforcement to determine the impact of forfeiture laws on forfeiture activity.

Results

Consistent with anecdotal reports and limited prior research, findings indicate that agencies in jurisdictions with more restrictive state forfeiture laws receive more proceeds through federal equitable sharing.

Conclusions

Results suggest that state and local law enforcement agencies use federal equitable sharing to circumvent their own state forfeiture laws when state laws are more burdensome or less financially rewarding to these agencies, providing additional evidence that police operations are influenced by financial incentives.     

美国影视作品著作权担保融资制度的新发展

很难想象在国产电影屡创佳绩的今天,家底丰厚的制片方华谊兄弟也被迫选择了著作权质押融资之路。这本可成为我国文化创意产业融通资金的最佳案例,却因法律环境以及相关中介机构的缺失使得此次值得惊喜的融资实践异化成一个令招商银行揪心的风险管理之旅,凸显出我国著作权担保融资体系的诸多不足。美国有效且成熟的著作权担保融资制度为美国电影制品的全球性成功输出提供了强大助力,其做法值得我国借鉴。     

关于乱收费的法律思考

乱收费是指行政主体在没有法律依据及法律授权的情况下强制公民、法人或者其他组织履行金钱给付义务、非法剥夺相对人财产权的侵权行为 ,反映出我国对公民财产权保护的脆弱、财政税收征管制度的混乱以及行政征收权的失控。应当在宪法上确立保护公民财产权的制度、完善税收征管及财政制度的同时 ,通过行政收费立法规范行政收费权 ,以法律手段遏制乱收费。