制定单行《民事非讼程序法》的建议与思考

在我国民事诉讼法上,由于传统理念的影响,导致了现行程序立法上的简单化和单一化,表现之一即是解决争讼案件与非讼案件程序上的合一。然而,非讼案件与争讼案件的不同特点,以及解决纠纷程序机制的不同,又从客观上提出了制定单独的《民事非讼程序法》的现实要求。对于我国《民事非讼程序法》的制定,应当在充分考虑我国市场经济条件下非讼纠纷大量出现的现实情况,以及解决社会非讼纠纷实际需要的基础上进行。     

Justice on the line? A comparison of telephone and face-to-face advice in social welfare legal aid

This paper investigates the impact on legal advice of the major shift to telephone-only services in social welfare legal aid, which took place in April 2013. An empirical study comparing telephone and face-to-face advice reveals that face-to-face contact has considerable advantages in the advice interview. Based on interviews and observations with housing law clients, their lawyers and advisers, the findings of this qualitative study demonstrate that clients and lawyers often find it easier to express themselves and understand each other face-to-face. The face-to-face interview benefits from features including the stronger emotional connection between lawyer and client, non-verbal communication, more expansive conversation and the greater ability to consult and confer over documents. Telephone-only advice may be suitable for some more capable clients and uncomplicated matters, but this qualitative research shows that vulnerable clients are more likely to be adversely affected by the potential disadvantages of telephone-only contact. Clients with more complex social needs or with more serious or urgent cases are better served by face-to-face advice. The findings of this research should inform the LASPO review and future priorities for legal aid funding.     

Legal Positivism and Legal Disagreements

This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that legal disagreements are genuine and at times faultless.     

Behavioral Heterogeneity in Adolescent Friendship Networks

Criminologists’ understanding of peer influences has been greatly advanced by social network methods; however, relatively scant attention has been paid to improving measurement. In particular, research has continued to measure peer influence by averaging the level of delinquency within a peer network, thereby neglecting the role of behavioral heterogeneity. The present study seeks to advance theory and research into peer influences on delinquency by explicitly modeling behavioral heterogeneity in peer networks measured as the variance. Drawing on social learning and opportunity theories, we argue that behavioral heterogeneity should attenuate the effect of average peer delinquency on individual offending. Models using social network data from the Add Health were estimated predicting involvement in two delinquent substance-use acts (cigarette smoking and getting drunk) as a function of peer influences. The results are consistent with our hypothesis, indicating that behavioral heterogeneity matters. Findings suggest that future research employing network models could incorporate peer behavioral heterogeneity to get a more accurate portrait of the processes of peer influence.     

社会自组织管理的司法应对

以非政府组织为主体的社会自组织管理是社会管理的重要组成部分。司法介入社会自组织管理的根据是司法管辖权的国家保留,介入方式取决于该事项是否关涉公共职能,介入限度要在逻辑分析和经验分析基础之上进行目的识别、利益衡量和价值权衡。在可以预见的未来,中国仍将是一个以发展为内质的国家,科学发展、和谐稳定、社会全面建设的任务,与行政诉讼建立之初市场经济方兴未艾、经济发展任务艰巨的情况已然不同,司法需要超越传统经验和智识以继续建立它同现实社会的功能联系。     

THE INTERACTION OF ANTISOCIAL PROPENSITY AND LIFE‐COURSE VARYING PREDICTORS OF DELINQUENT BEHAVIOR: DIFFERENCES BY METHOD OF ESTIMATION AND IMPLICATIONS FOR THEORY*

Recent criminological research has explored the extent to which stable propensity and life‐course perspectives may be integrated to provide a more comprehensive explanation of variation in individual criminal offending. One line of these integrative efforts focuses on the ways that stable individual characteristics may interact with, or modify, the effects of life‐course varying social factors. Given their consistency with the long‐standing view that person–environment interactions contribute to variation in human social behavior, these theoretical integration attempts have great intuitive appeal. However, a review of past criminological research suggests that conceptual and empirical complexities have, so far, somewhat dampened the development of a coherent theoretical understanding of the nature of interaction effects between stable individual antisocial propensity and time‐varying social variables. In this study, we outline and empirically assess several of the sometimes conflicting hypotheses regarding the ways that antisocial propensity moderates the influence of time‐varying social factors on delinquent offending. Unlike some prior studies, however, we explicitly measure the interactive effects of stable antisocial propensity and time‐varying measures of selected social variables on changes in delinquent offending. In addition, drawing on recent research that suggests that the relative ubiquity of interaction effects in past studies may be partly from the poorly suited application of linear statistical models to delinquency data, we alternatively test our interaction hypotheses using least‐squares and tobit estimation frameworks. Our findings suggest that method of estimation matters, with interaction effects appearing readily in the former but not in the latter. The implications of these findings for future conceptual and empirical work on stable propensity/time‐varying social variable interaction effects are discussed.     

'We want you! But . . .' Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

The article submits a proposal for outlining the present body of legal norms in the field of European migration and immigration law. To this end, it suggests understanding European migration and integration law as shaped by two principles: the principle of congruence between a state's territory, authority and citizenry and the principle of progressive inclusion. According to the established principle of congruence, the granting of rights to third‐country nationals (TCNs) is always geared to the ideal image that the persons permanently living on a territory are—in reality—part of the citizenry of that state and subject to the state's authority. According to the more recent principle of progressive inclusion, TCNs are to be gradually included into the host country's society by approximating their rights progressively to the rights of citizens. There are potential tensions between the two principles, which can be explained by the diverging philosophical and political concerns that they follow and the conceptions of migration that each uses. The article then goes on to explore the influence of both principles in current European migration and integration law. It brings forward the argument that current European migration and integration law is structured as much by the ‘older’ principle of congruence as by the principle of progressive inclusion. This assumption will be illustrated by the examples of the Long‐term Residents Directive (LTR Directive). Important provisions of the proposal for a framework directive intended to guarantee TCNs' equal treatment with EU citizens in social matters (Draft Framework Directive) and the directive on the highly skilled migrant workers (Blue Card Directive) will also be taken into account. Against the background of the highly contested legal field of migration and integration law, using the language of principles provides a useful tool not only for better grasping the current shape of this legal field, but even more for the legal discourse on the future development of European migration and integration law.     

Legal influences on local education powers in the Netherlands: A European and international dimension?

One of the most striking recent developments in education in the Netherlands is the shift of powers from the central national level to the local level for several education policy fields, most notably for the policies aimed at reducing social and education disadvantages and those aimed at the integration of non-nationals into Dutch society. In this article, the influences from European and international law on this Dutch development are being discussed. The conclusion is that there must be a European influence on the contents of national policy matters as such in a general manner, but that the legislation influence stays behind in development.     

The justification of punishment and the justification of political authority

Philosophical accounts of punishment are primarily concerned with punishment by the (or: a) state. More specifically, they attempt to explain why the (a) state may justifiably penalize those who are judged to violate its laws and the conditions under which it is entitled to do so. But any full account of these matters must surely be grounded in an account of the nature and purpose of the state and the justification of state authority. Because they are not so grounded, deterrence and retributive theories are incomplete as they are typically formulated. The intuitions behind these theories can be satisfied in a variety of complete theories, i.e., theories that understand the justification of punishment in relation to the justification of state authority. A consequence of this is that at least some of the intuitions underlying deterrence and retributive theories can be satisfied at the same time by a given theory.     

Indirect Crimes

Both law and morality routinely distinguish between direct wrongs of causing harm oneself and indirect wrongs of contributing to another’s harmful actions. This article asks whether this distinction matters for the purposes of a theory of criminalisation. It argues that, in some respects, the distinction matters less than is often supposed: generally, the potential future actions of others have at least some relevance to what we ought to do. However, it is morally significant that criminal liability for indirect wrongdoing can make our freedom to do valuable things contingent upon others’ failure to comply with their moral obligations. This raises substantial concerns of autonomy and fairness that tell against the creation of some – but by no means all – indirect crimes.     

法制新闻报道的发展与存在的问题

法制新闻作为一种专业性新闻,是以1980年《中国法制报》的创刊为标志的。1985年开始的向全体公民普及法律常识的活动,是中国向社会主义法制迈进的一个创举,同时也促进了法制新闻的快速发展。近20年来,人民群众在生活中基本树立起了契约观念、诉讼观念、依法办事和在法律面前人人平等的观念,法制新闻报道的内容也早已涉及国家、社会生活的方方面面。因此,作为对这个现实进行反映的法制新闻报道的重要性得到了进一步的提升,形成了独特的媒介文化景观。目前的法制新闻报道与早期报道相比,出现了一些值得肯定的新特点,但仍然存在一些问题。     

Competition for Sustainability: Sustainable Development Concerns in National and EC Competition Law

Competition law has become increasingly important in regulating the economy. This article aims to explore how domestic competition law relates to sustainable development. It distinguishes three ways that competition law can take into account environmental and social priorities: through substantive competition rules fostering social or ecological purposes; through exceptions, exemptions and exclusions; and through the enhanced application of competition laws. The first form is very interesting and currently not very widely used. Only a very few countries, such as South Africa, have included substantive provisions to promote social development in their competition laws. Most countries allow for some version of the second form of sustainable competition law. Few countries' laws are as outspoken about their public policy goals as is Spain in its new draft competition law. This new draft law explicitly lists environmental protection and social policies as grounds upon which the government could repeal a competition decision. The third form is relatively unproblematic as it creates a win-win situation for competition and sustainable development. This article surveys some of the most interesting competition law developments across the world and indicates where these domestic regimes take into account environmental or broader social issues when making competition-related decisions such as merger approvals.     

Transnational Communities and the Concept of Law

Abstract. The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as “law,” suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based in the diverse moral conditions of the networks of community which regulation serves.     

Rules of Possession Revisited: Property and the Problem of Social Order

This article explores two propositions in the literature on rules of possession. The first is that rules of first possession may form the basis for “spontaneous order.” The article argues that this Hayekian proposition must take into account the relationship between property and authority, including the potential for social disorder when competition for possession combines with competition for public authority. The second is that simple rules of possession provide a baseline response to the problem of social order because of the information costs of property in a large audience context. The article argues that this proposition must take into account correlations between interpretive complexity in rules of possession and the reproduction of authority and social order in circumstances of threatened social disorder. The analysis highlights the significance of authority and enforcement for the design of rules of possession and their relationship with social order.     

The legal question of the obtention of human stem cells for biomedical research. Legislation policy considerations]

The future Law on Biomedical Research, whose draft bill has been approved by the Council of Ministers and that will soon begin its parliamentary process of approval, will regulate, among other matters, the research with embryos. Likewise, it will make a pronouncement on the so-called therapeutic cloning. This report makes a detailed analysis of different matters that must be borne in mind by the legislator in order to face the process of evaluation and approval of said Law in relation with the aforementioned matters. It makes a special analysis of the legal texts of an international nature to which Spain is unavoidably subjected to, in such a way that the legislative text that will finally be approved is not contrary to the dispositions that are within such.     

Mass incarceration: ‘a sin against the future’?

Conclusion The move towards incarceration as the response to all social problems is serious for all the reasons given above. It constitutes negative investment in the future and gives a frightening legitimacy to that vision of the society of the future that sees the population divided into three, one third living a comfortable life but behind fortifications, one third incarcerated in some form of camp or ghetto and the other third guarding the homes of the comfortable or working as prison personnel. The 20th century has not had a very good record on incarceration. It has seen Hitler’s concentration camps and Stalin’s Gulag. Nils Christie and other commentators talk already of the US gulag. In Western Europe, still, these are but trends. Imprisonment rates are still generally, except for those of the UK, lower than 100 per 100,000. The punitive and exclusionary attitudes prevalent in the US are not so deeply embedded in European traditions. A philosophy of re-integration into society for offenders still underpins legislation and practice. A philosophy of social cohesion governs institutions. The assumption is that offenders, although they must undergo criminal sanctions and pay back in some way for what they have done, keep their citizenship and must be welcomed back into society. These beliefs are part of European democratic ideals. Much energy will need to be put into supporting and maintaining them in penal policy in the years ahead.     

SOCIAL INTERACTION AND COMMUNITY CRIME: EXAMINING THE IMPORTANCE OF NEIGHBOR NETWORKS

The social disorganization perspective assumes that social interaction among neighbors is a central element in the control of community crime. Moreover, social interaction among neighbors that occurs frequently, such as every day, is assumed to be most effective. This analysis tests that assumption by exploring the consequences of frequent and infrequent interaction. I construct 10 alternative measures of social interaction and separately examine the effect of each on the rates of three serious crimes across 60 urban neighborhoods. Findings suggest that type of interaction matters. Getting together once a year or more with neighbors has the most consistent and generally strongest effect on burglary, motor vehicle theft, and robbery. Further this form of interaction mediates a significant proportion of the effect of ecological characteristics on community crime. Implications for community crime research are discussed.     

Can a witness report hearsay evidence unintentionally? The effects of discussion on eyewitness memory

Abstract

When eyewitnesses are exposed to misinformation about an event from a co-witness, they often incorporate this misinformation in their recall of the event. The current research aimed to investigate whether this memory conformity phenomenon is due to change in the witness's memory for the event, or to social pressures to conform to the co-witness's account. Participants were shown a crime video and then asked to discuss the video in groups, with some receiving misinformation about the event from their discussion partners. After a one-week delay some participants were warned about possible misinformation before all participants provided their own account of the event. In Study 1, participants made remember/know judgments about the items recalled, and in Study 2 they indicated the source of their memories. Co-witness information was incorporated into participants’ testimonies, and this effect was not reduced by warnings or source monitoring instructions, suggesting memory change may have occurred. However, there was some indication that remember/know judgments may help distinguish between ‘real’ memories and co-witness information.     

A New Twist on an Old Approach: A Random-Interaction Approach for Estimating Rates of Inter-Group Interaction

There are numerous instances in which researchers wish to measure the rate of intra- or inter-group interactions (whether positive or negative). When computing such measures as rates there is great uncertainty regarding the appropriate denominator: we analytically illustrate how the choice of the denominator when calculating such rates is not trivial and that some existing strategies create a built-in relationship between the computed rate and the group composition within the entity. Another strand of prior work only focused on the relative occurrence of intra- versus inter-group events, which does not account for the important theoretical possibility that both types of events might increase in certain social contexts. Our approach provides an advance over these earlier strategies as it allows one to take into account the relative frequency of interaction between members of different groups, but then translates this into per capita rates. We also provide an empirical example using data on inter- and intra-group robbery and aggravated assault events for block groups in a section of the city of Los Angeles to illustrate how our procedure works and to illustrate how other approaches can lead to dramatically different conclusions.     

Privacy Self-Management: A Strategy to Protect Worker Privacy from Excessive Employer Surveillance in Light of Scant Legal Protections

This article examines current and future trends in worker surveillance. It also examines the various, though minimal, legal protections workers have against extensive work-related monitoring. With no meaningful legal protections against excessive work-related surveillance, employees are arguably taking matters into their own hands by engaging in deviant behaviors that attempt to thwart surveillance efforts. Factoring in the ethical and managerial dimensions of a workforce under constant and excessive surveillance, this article examines a way forward for workers to engage in self-managed privacy, potentially leading to a less intrusive, but still productive, work environment.