“行政强制措施”与“行政强制执行”的分界

《行政强制法》既将行政强制措施与行政强制执行"合二为一"(合称为"行政强制"),又在同一法中将它们"一分为二"(分别规定"行政强制措施"与"行政强制执行")。之所以将它们"合一",是基于行政强制措施与行政强制执行有其行政行为上的共性;之所以将它们"分二",是基于行政强制措施与行政强制执行在法律设定和法律适用中的严格区别。作者在反思以前几种区别理论的基础上,认为行政强制措施与行政强制执行之间最为本质的区别应当是行政机关强制当事人履行的"义务"不同:强制当事人履行"容忍、不作为"义务者为行政强制措施;强制当事人履行"作为"义务者为行政强制执行。     

Methodological issues in monitoring the use of coercive measures

PurposeIn many European countries, initiatives have emerged to reduce the use of seclusion and restraint in psychiatric institutions. To study the effects of these initiatives at a national and international level, consensus on definitions of coercive measures, assessment methods and calculation procedures of these coercive measures are required. The aim of this article is to identify problems in defining and recording coercive measures. The study contributes to the development of consistent comparable measurements definitions and provides recommendations for meaningful data-analyses illustrating the relevance of the proposed framework.MethodsRelevant literature was reviewed to identify various definitions and calculation modalities used to measure coercive measures in psychiatric inpatient care. Figures on the coercive measures and epidemiological ratios were calculated in a standardized way. To illustrate how research in clinical practice on coercive measures can be conducted, data from a large multicenter study on seclusion patterns in the Netherlands were used.ResultsTwelve Dutch mental health institutes serving a population of 6.57 million inhabitants provided their comprehensive coercion measure data sets. In total 37 hospitals and 227 wards containing 6812 beds were included in the study. Overall seclusion and restraint data in a sample of 31,594 admissions in 20,934 patients were analyzed. Considerable variation in ward and patient characteristics was identified in this study. The chance to be exposed to seclusion per capita inhabitants of the institute's catchment areas varied between 0.31 and 1.6 per 100.000. Between mental health institutions, the duration in seclusion hours per 1000 inpatient hours varied from less than 1 up to 18 h. The number of seclusion incidents per 1000 admissions varied between 79 up to 745. The mean duration of seclusion incidents of nearly 184 h may be seen as high in an international perspective.ConclusionCoercive measures can be reliably assessed in a standardized and comparable way under the condition of using clear joint definitions. Methodological consensus between researchers and mental health professionals on these definitions is necessary to allow comparisons of seclusion and restraint rates. The study contributes to the development of international standards on gathering coercion related data and the consistent calculation of relevant outcome parameters.     

论违约行使土地使用权的法律后果——以私法规范在行政管理中的应用为视角

按规定用途、规划条件及动工期限利用土地，并非根源于土地使用权出让合同的私法义务，而实质上是土地使用权人所负公法义务进入私法领域后的一种变脸。因此，不能纯粹以私法思维解释违约行使土地使用权的法律后果。当土地使用者违约行使权利时，土地行政管理部门应责令限期改正，并视违约或违法情况，采取必要的行政强制措施，并可施以罚款。如果穷尽适当的行政强制措施或行政处罚仍不能制止违法用地行为，土地行政管理部门可以私法方式解除出让合同，终止土地使用权，并要求土地使用者支付惩罚性违约金或赔偿金。     

Coercion and patient satisfaction on psychiatric acute wards

Legal-, perceived- and objective coercion were examined both separately and together as a measure of accumulated coercion, to determine how coercion affected patient satisfaction in patients admitted for acute psychiatric care. Accumulated coercive events significantly reduced both overall satisfaction, and satisfaction in four of five subscales evaluating different aspects of treatment. Neither legal status nor perceived coercion affected patient satisfaction, while objective coercion had a significant negative effect on overall satisfaction when these measures were analysed separately. Overall patient satisfaction reported at discharge was low, while satisfaction with different aspects of treatment showed considerable variation. The observation that perceived coercion in the admission process did not affect satisfaction significantly underlines the need to further explore the interaction between subjective and objective measures for coercion. It appears that multiple measures for coercion should be used in future studies.     

刑事诉讼强制措施的适用应遵守比例原则——兼论相关检察监督

刑事强制措施作为刑事诉讼的重要手段和保障措施长期以来得到了充分的运用,但法律有关强制措施强度及其适用的规定存在着明显不足,客观上导致其在实践中被不正确适用甚至滥用。引进比例原则,对强制措施的适用加以合理限制,使其与被追诉人适用的刑罚相谐调,有利于其在刑事诉讼中发挥合理效能。     

Experiences of coercion during investigation and treatment

According to Swedish legislation (LVM) compulsory treatment shall be decided on if someone, due to ongoing abuse of alcohol, drugs or volatile solvents, is in need of care to overcome abuse and if a voluntary intervention is not possible. Very little research has been conducted in Sweden on this particular legislation with regard to the clients' experiences of entire process from assessment to aftercare. We interviewed 74 subjects who were being assessed prior to the court's decision on involuntary care (n=39), or with previous experience of assessment and involuntary care (n=35). The assessment group more often reported having the opportunity to express their opinions to the social worker during the assessment period (55% vs. 21%, p<.05) and they were more positive towards the final decision (60% vs. 24%, p<.05). In spite of the law, 18% were not contacted by the social services while in coercive treatment. The clients who did meet with a social worker, often described the conferences as more of a perfunctory nature with a lack of focus on the actual situation and aftercare planning. This study points at a need of studying the subjects' experiences of the whole continuum of the coercive process: from the investigation, to treatment and to aftercare. It also points at the need for new instruments to be developed covering all aspects of the coercive process and in particular the period of investigation prior to the decision on involuntary care.     

我国刑事强制措施的功能回归与制度完善

诉讼保障和人权保障是我国刑事强制措施的双重功能,惩罚教育、刑罚预支、证据发现以及犯罪预防等强制措施功能异化或者泛化的现象应当予以规范。未来我国强制措施的制度完善,应当以实现诉讼保障和人权保障功能回归为主线,秉持宪政视野、实践视野和国际视野,从整体上将强制措施区分为羁押措施和非羁押措施,实现逮捕与羁押相分离,设置独立的羁押程序,强化羁押的审查与救济,丰富羁押替代措施的种类并对其加以权利化改造,完善监视居住制度等。     

Why Is There a Strong Positive Correlation Between Perpetration and Being a Victim of Sexual Coercion? An Exploratory Study

The purpose of this research was to determine if the correlation between perpetration and being a victim of sexual coercion is due to a lack of self-control, a coercive lifestyle, or dysfunctional romantic relationships. Two hundred and sixty-two college students completed measures of perpetration and being a victim of sexual coercion, lack of self-control, coercive lifestyle, romantic partner’s coercive lifestyle, and partner’s perpetration and being a victim of sexual coercion. Support was not found for the lack of self-control and coercive lifestyle explanations; support was found for the dysfunctional relationships explanation. Multiple regression analyses found that the self-control variable that best (negatively) predicted both perpetration and being a victim of sexual coercion was valuing long-term, committed romantic relationships. Interventions to prevent perpetration and being a victim of sexual coercion should focus not only on the individual victim/perpetrator but also on promoting functional romantic relationships.     

Men’s Partner-Directed Insults and Sexual Coercion in Intimate Relationships

Women who have been sexually coerced by an intimate partner experience many negative health consequences. Recent research has focused on predicting this sexual coercion. In two studies, we investigated the relationship between men’s use of partner-directed insults and sexually coercive behaviors in the context of intimate relationships. Study 1 secured self-reports from 247 men on the Partner-Directed Insults Scale and the Sexual Coercion in Intimate Relationships Scale. Study 2 obtained partner-reports from 378 women on the same measures. Across both studies, results indicate that men’s use of sexually coercive behaviors can be statistically predicted by the frequency and content of the insults that men direct at their intimate partner. Insults derogating a partner’s value as a person and accusing a partner of sexual infidelity were most useful in predicting sexual coercion. The discussion notes limitations of the current research and highlights directions for future research.     

新《刑事诉讼法》视野下指定居所监视居住之审视与检察规制

新《刑事诉讼法》的立法初衷将监视居住从非羁押性强制措施转变为减少羁押的替代性措施，但具体的条文设计却使监视居住制度产生了内部的分裂：在嫌疑人、被告人自己住所执行的监视居住可以被认为是一种非羁押性的强制措施，但指定居所的监视居住却演变为一种准羁押性的强制措施。我们应立足司法实践，以程序正义与人权保障的价值博弈为切入点，以构建刑事强制措施体系的层次性、完整性为视角，提出通过加强检察机关的监督使该项制度更加完善与更加具有可操作性。     

COERCIVE AND NONCOERCIVE ABORTION DETERRENCE POLICIES: A Comparative State Analysis

The Supreme Court's decision in Roe v. Wade ( 1973) limited the authority of states to prohibit abortions during the first two trimesters of pregnancy. Although they can no longer prohibit abortions, state legislatures have adopted a variety of coercive and noncoercive policies that might operate to alter the utilities associated with having or providing abortions. This article analyzes the relative impacts of these policies on two measures of abortion behavior: (1) state abortion rates in 1976 and (2) trends in states' abortion rates from 1973 to 1976. Multiple regression analysis reveals that neither coercive nor noncoercive policies are strongly related to these aggregate measures of abortion behavior .     

从一起“取缔”强制措施未能实施的案件谈起

总结忽视执法文书的使用导致取缔案未能实施的教训,提出应对取缔案件的性质加以区分,分别采取收缴性强制措施和扣押性行政处罚的建议;完善强制(取缔)措施的法律程序,设定相应的执法文书,使取缔更具操作性,实现法律效力,彰显法律尊严。     

Key Risk Factors for Relapse and Rearrest Among Substance Use Treatment Patients Involved in the Criminal Justice System

Substance use treatment programs for criminal justice populations have great potential for crime reduction, if they can effectively manage patients’ risk for relapse and rearrest. The current study used data drawn from the Comprehensive Assessment and Treatment Outcome Research (CATOR) system, a national registry of substance use treatment programs, which collected patient outcome data at 6- and 12-month intervals following discharge from treatment. The primary objective was to examine sets of factors that may compromise relapse and rearrest outcomes among patients who were court mandated to participate in treatment. Findings demonstrated that patients’ clinical severity of substance use was associated with relapse, which also significantly increased the probability of post-treatment arrest. Adolescent risk behaviors represented another set of risk factors, particularly among patients who experienced the most severe pattern of relapse and arrest outcomes. Additionally, demographic risk factors, including age, marital status (i.e., single or unmarried relative to married), employment (i.e., being unemployed compared to employed), and lower educational attainment were consistently linked to higher probabilities of relapse and rearrest. Treatment programs for criminal justice populations should consider incorporating appropriate clinical risk assessment measures, behavioral risk assessments, and appropriate employment interventions into standard treatment programming in an effort to improve outcomes.     

INTIMATE PARTNER ABUSE SCREENING IN CUSTODY MEDIATION: THE IMPORTANCE OF ASSESSING COERCIVE CONTROL

The central point of this paper argues that measuring physical violence alone is insufficient to detect relational distress in child custody/parenting time mediation samples. We present empirical findings from a large study attending custody/ parenting time mediation. Results suggest that the most economical and efficient screening tool should include measures of coercive controlling behavior. Our data suggests that coercive control is able to account for other victim distress variables crucial to mediation, including victim fear, victim safety and ultimately the fairness of the mediation process. We recommend that researchers continue to refine measures of coercive control to be used in custody/parenting time mediation settings.     

试论卫生行政强制措施及文书使用

摘要随着2012年12月1日新《卫生行政执法文书规范》的实施,卫生行政强制措施的实施有了规范的执法文书。为了全面了解卫生行政强制措施,笔者依据《中华人民共和国行政强制法》,系统梳理了卫生行政强制措施,将卫生行政强制措施分为两类,分别适用《行政强制法》第三条第一款、第二款,并探讨了两类强制措施的文书使用。     

Invocation of coercion context in compliance communication -- power dynamics in psychiatric care

This article draws on observations from ethnographic fieldwork to develop a theoretical understanding of the power dynamics in psychiatric care. The aim is to analyze how psychiatric clinicians solve compliance problems by invoking "coercion context". It is suggested that clinicians take a rather instrumental approach to laws regulating coercive intervention. Clinicians may invoke a coercion context even with voluntary patients. For example, they may use wordings that connote coercion, or they may make use of how treatment wards are set up to accommodate involuntary patients, thus stalling voluntary patients who cannot exit through locked doors. A coercion context can also be invoked to solve mundane practical problems, e.g. when clinicians talk about "coerced showers". The management of information and maintaining a suitable "awareness context" with regards to coercion is an essential feature in clinical attempts to achieve compliance from patients. In conclusion, the notion of coercion context helps explain the confusing findings from previous research about patients' apparent misconceptions of their formal legal status. Furthermore, it is argued that research that rely on decontextualised, objectifications of "coercion" risk to miss the meaning coercion is assigned in everyday clinical practice.     

我国刑事强制措施制度的重构

我国现行刑事强制措施制度虽然在惩治犯罪方面发挥了一定的积极作用,但在价值追求、体系建构、具体制度设计等方面存在偏颇和严重缺陷,应按照必要、适当和权利救济原则,重构我国的刑事强制措施体系,完善相关制度,健全救济机制,寻求惩治犯罪与保障人权的基本平衡。     

Coercive Interrogation of Eyewitnesses Can Produce False Accusations

In the current study we hypothesized – and found – that coercive interviewing increased the incidences of false accusations made by eyewitnesses. Fifty-nine university students participated in a laboratory study in participant-confederate pairs and were later interviewed about whether the confederate stole a research assistant’s cell phone. Participants interviewed using a Coercive Interview were significantly more likely to falsely accuse the confederate of stealing a cell phone than were participants interviewed using a non-coercive, Control Interview. Our findings raise questions regarding why participants gave false accusations and whether coercive methods could result in more accurate testimony from reluctant witnesses. We suggest the need for potential safeguards, such as the electronic recording of interviews of non-suspect witnesses to prevent or document the use of coercive methods.     

Women Police Officers and the Use of Coercion

Abstract

Despite numerous advances in the last thirty years, women police officers continue to face acceptance issues in a male-dominated occupation. Qualitative accounts of policewomen have noted that many of the integration barriers stem from traditional assumptions about police work, much of which revolves around the cultural mandate to display one's coercive authority over citizens. Female officers are often perceived as unwilling (or lacking in ability) to use coercion when encountering citizens. Unfortunately, little empirical evidence is available to support this claim, as gender studies that specifically examine the use of coercion have tended to focus on excessive force. Using data collected as part of a systematic social observation study in Indianapolis, Indiana, and St. Petersburg, Florida, this research examines both verbal and physical coercion that policewomen use in day-to-day encounters with citizens. The results of this study challenge one of the most fundamental stereotypes levied against women police officers. Contrary to traditional assumptions, female police officers (compared to their male counterparts) are not reluctant to use coercive force, and examinations of both verbal and physical force reveal few differences in not only the prevalence of each behavior, but also in the commonly associated explanatory factors. The article concludes with the implications of these     

Assessment of rape-supportive attitudes and beliefs in college men: development, reliability, and validity of the rape attitudes and beliefs scale

Discussed is the development and psychometric analysis of a measure of rape-supportive attitudes and beliefs called the Rape Attitudes and Beliefs Scale (RABS), intended for the use with college men. Items were developed from a literature review of "rape myths" that were correlated to some measure of sexual aggression. An exploratory factor analysis using only male participants revealed five factors: a) justifications for sexual aggression based on women's behavior, b) belief that women should hold more responsibility for sexual assault, peer c) pressure/need for sexual status and misreading women's sexual intent, d) acceptance of the use of alcohol and coercive tactics to acquire sexual compliance, and e) dislike for the feminine and acceptance of traditional gender roles. Initial reliability and validity studies were favorable for the RABS, including evidence that these factors were positively related to measures of sexual aggression. Each factor demonstrated differential power to predict sexual aggression, with justifications being the most powerful. Implications for counseling and education are discussed.