香港民事诉讼中的诉讼费担保制度

诉讼费担保制度是普通法系国家的一项民事诉讼规则和制度,它能够解决一些因诉讼费而产生的不公平问题。在诉讼费担保制度的适用情形、担保金命令的申请程序、担保金命令的发出程序、担保金命令的法律效力、担保金的取回程序方面,香港都有比较完善的规定,但也存在一些需要解决的问题。香港诉讼费担保制度的成功之处对于阻止内地民事诉讼中的当事人滥诉行为,会有一定的借鉴意义。     

Damages for Mental Distress and Bad Faith in Disability Claims

This article examines recent changes in the law in Canada in relation to the court’s willingness to acknowledge the significance of, and award compensation for, intangible loss arising from breach of contract. When a claim for benefits is wrongly refused in a disability contract, a primary goal of the contract, which is to provide peace of mind, is unrealized. Where this causes mental distress, Canadian courts are now willing to award compensation. Similarly, if an insurer conducts itself in such a manner as to attract a punitive damages award, a consideration in assessing the quantum of the award is the vulnerability of the insured. The evidentiary basis for these claims will often include expert psychological opinion. Various considerations for determining the existence, nature, and scope of the psychological issues relevant to a claim for damages for mental distress and/or punitive damages are covered in this article.     

“All the System is Simply a Soap Bubble”: Legal Help-Seeking for Domestic Violence Among Women in Kyrgyzstan

This paper examines limitations in how law enforcement and public health systems respond to domestic violence in Kyrgyzstan. Findings from interviews with domestic violence victims show that these women are subject to ineffectual practices and negative attitudes that tend to minimize domestic abuse and disempower victims. The findings reveal several problematic issues: inconsistencies in the implementation of the law, impunity for abusers because of both personal attitudes and social affinities between the police and abusers, ineffective enforcement of protective orders, and superficial processing of domestic violence cases by the legal system. Additional barriers to help-seeking include a lack of institutional support and guidelines for offering mental health services for victims as well as a scarcity of housing, childcare, and employment opportunities for women seeking to break the cycle of abuse. The findings underscore the need for society-wide changes in attitudes toward domestic violence, stricter mechanisms for enforcing the law, and mandatory training for service providers to facilitate the provision of more accessible and affirmative support to victims.     

证人、鉴定人出庭作证费用补偿范围和标准研究

我国现行《民事诉讼法》及司法解释中关于证人出作证庭费用之规范存在补偿范围不具体和补偿标准不明晰等诸多问题，关于鉴定人出庭费用的补偿范围和标准之规定更是付之阙如。民事司法实践中各地方法院关于证人、鉴定人出庭费用的补偿范围和标准的认定混乱且随意性大，严重损害了当事人的合法权益。《民诉法解释》规定“按照机关事业单位工作人员差旅费和补贴为标准”计算证人出庭作证费用更是有违平等原则。我国民诉立法应在厘清证人、鉴定人出庭作证费用性质的基础上，采用列举规范的方式明确规定证人、鉴定人出庭费用的补偿范围，统一并明晰证人、鉴定人的补偿标准。     

服务侵权责任是独立的质量侵权责任

服务侵权责任是一项独立的质量侵权责任。承担服务侵权责任的前提条件是服务存在缺陷,即服务经营者所提供的服务不符合保障人身、财产安全的要求,包括服务设计缺陷、服务指示缺陷和服务过程缺陷。服务侵权责任的归责原则应采取过借推定兼顾公平原则。服务侵权责任与产品责任、建筑侵权责任构成我国“三位一体”的质量侵权责任制度。     

A GOOD EXAMPLE OF PARENT ADVOCACY FOR RIGHTS IN INCLUSIVE EDUCATION IN CHINA

While children with disabilities experience exclusion and segregation in education, parents’ involvement has been very limited due to the lack of parent support in China. Negative attitudes toward disability in an environment deeply influenced by the individual model of disability thinking makes it crucial for parents to advocate for their children’s rights in inclusive education through collaborative and organized efforts. This article examines barriers obstructing disabled children’s rights in pursuing inclusive education, barriers parents face to advocate for their children, and the development of parent support. The author argues that equal and inclusive education for all has a broader social impact beyond disability rights to eliminate barriers and pursue dignity for all. In doing so, the author reveals existing structural inequalities facing inclusive education, encourages the momentum for future changes, and utilizes a good example of parent advocacy for a deeper and meaningful policy advancement to overcome discrimination on the basis of disability that causes segregation and exclusion in education. Recommendations include strategies for the construction of a support network for parents to play their important roles in advancing the rights of their disabled children in inclusive education.     

Medicare program; physician fee schedule update for calendar year 1996 and physician volume performance standard rates of increase for federal fiscal year 1996--HCFA. Final notice

This final notice announces the calendar year 1996 updates to the Medicare physician fee schedule and the Federal fiscal year 1996 volume performance standard rates of increase for expenditures for physicians' services under the Medicare Supplementary Medical Insurance (Part B) program as required by sections 1848 (d) and (f), respectively, of the Social Security Act. The fee schedule update for calendar year 1996 is 3.8 percent for surgical services, -2.3 percent for primary care services, and 0.4 percent for other nonsurgical services. While it does not affect payment for any particular service, there was a 0.8 percent increase in the update for all physicians' services for 1996. The physician volume performance standard rates of increase for Federal fiscal year 1996 are -0.5 percent for surgical services, 9.3 percent for primary care services, 0.6 percent for other nonsurgical services, and a weighted average of 1.8 percent for all physicians' services. In our July 26, 1995 proposed rule concerning revisions to payment policies under the Medicare physician fee schedule for calendar year 1996, we proposed using category-specific volume and intensity growth allowances in calculating the default Medicare Volume Performance Standard (MVPS). We received 20 comments on this proposal. Since this proposal is related to the MVPS and this notice deals with MVPS issues, we are responding to those comments in this notice instead of in the final rule for the fee schedule entitled "Medicare Program; Revisions to Payment Policies and Adjustments to the Relative Value Units Under the Physician Fee Schedule for Calendar Year 1996" published elsewhere in this Federal Register issue.     

登记的担保权顺位规则研究——以《民法典》第414条分析为中心

登记的担保权顺位规则旨在解决以登记作为公示方式的担保权竞存时的顺位问题,《民法典》第414条构建了以登记为中心的抵押权竞存下的顺位规则,该条具有强大的体系效应和广泛的适用价值,它构建了统一的动产重复抵押的顺位规则,解决了权利重复抵押的顺位规则、抵押权与可以登记的权利质权冲突规则,明确了典型担保与非典型担保之间的顺位关系,并可参照适用于权利质权竞存情形下权利顺位的确定,为多重的担保性债权转让的顺位规则提供了基础。《民法典》第414条确立了顺位升进主义。但《民法典》第414条在适用中应当排除正常经营买受人优先保护规则、价金超级优先权规则等规则的适用。     

Integrating the desire–for–control and rational choice in a corporate crime context

The “rational choice” framework, with its focus on risks and rewards, is often used to explain corporate criminality. In this paper, we build on this framework by integrating the notion of “desire‐for‐control.” Although common to many psychologists, the desire‐for‐control, or the general wish to be in control over everyday life events, has not been examined for its relevance in understanding criminal activity generally, or within corporate offending in particular. After demonstrating the importance of desire‐for‐control in the corporate context, we use data from a sample of managers and MBA students to examine the extent to which desire‐for‐control relates to rational‐choice considerations and corporate criminal decision‐making. Results suggest that desire‐for‐control (1) influences the interpretation of rational‐choice considerations and (2) is positively related to corporate criminality even after controlling for a number of important situational‐ and individual‐level factors. Implications for future theoretical and empirical research are addressed.     

《著作权法》第三次修改的重要内容及价值考量

将于2021年6月1日正式开始实施的著作权法修改决定,对我国的著作权法律制度作了重大完善,修改的主要内容包括:一是完善相关概念和制度,包括完善作品的定义和类型,明确视听作品的权利归属,廓清广播权的内涵,修改合理使用的相关内容,增加职务表演制度等;二是强化对著作权人的保护,包括增加惩罚性赔偿制度,提高法定赔偿额,加大对严重侵权行为的行政处罚力度等;三是解决权利人维权难题,包括增加作品登记制度,增加文书提交令制度,实行举证责任倒置,完善诉前保护制度,完善著作权集体管理制度等;四是全面履行国际条约义务,包括延长摄影作品的保护期,完善残疾人合理使用的规则,增加表演者对其表演的出租权,增加录音制作者的广播和机械表演获酬权等。     

Pubic bone age estimation in adult women

In recent years, numerous physical anthropologists have pointed out the need for regional standards for estimating age in various world populations. While investigating aging methods for East European populations, dramatic changes were noted in the pubic symphyseal morphology and structure of older adult female individuals. These changes were not captured in the typically used pubic symphysis aging methods. This paper defines and tests the need for a new phase, phase VII, that follows the Suchey-Brooks phase VI. In addition, Suchey-Brooks phases V and VI are redefined. Phase definitions, decision-making rules, and comparison graphics for the new method are presented. Balkan (n = 85) and Eastern Tennessee (n = 104) samples, totaling 189 individuals, were used in the analysis. Pearson correlation coefficients between four observers and a control seriation were strong, indicating ease of replicability between investigators. No statistically significant intra-observer error was detected. Summary statistics show that individuals in phase V were on average in the early 50s, while individuals in phase VI were in their mid 50s to mid 60s, and individuals in phase VII were in their mid 70s. Since linear regression models tend to under-age the elderly and over-age the young, transition analysis, using an unrestricted cumulative probit model, was undertaken to evaluate the phases and to produce point estimates for the ages-at-transition for the Balkan sample. The highest posterior density region point estimates with their associated upper and lower bounds can be used for predicting age for unknown forensic cases related to the Balkan sample. Further, the mean ages and standard deviations for phases V-VII for the Tennessee sample are presented for use in American forensic cases.     

The use of medical examinations for employment purposes

This article examines a number of legal issues which arise where medical examinations or tests are used in the employment context, either to test the suitability of a prospective employee in pre-employment situations or to ascertain the fitness of existing employees. Employer justifications for seeking medical information usually relate to attempts to comply with health and safety legislation and to reduce workers compensation costs. This article discusses the legal obligations involved in pre-employment medical testing and, in particular, employee obligations to provide correct information in relation to their health to a prospective employer. It also notes the consequences for employees of providing false information in relation to workers compensation claims and dismissal cases. The article notes the growing trend of requiring drug and alcohol testing for existing employees, particularly in the mining industry. The article concludes by noting that employers need to take care in seeking medical information, and that it should not simply be done as a mechanical, matter-of-course exercise. Failure to observe anti-discrimination laws may result in the employer facing allegations of misuse of medical information and claims for damages for discrimination.     

我国民事再审事由的立法完善

民事再审事由虽然在2007年《民事诉讼法》中得到了修补，但仍需要进一步规范和完善。完善我国民事再审事由的基本思路是，严格控制民事再审事由的范围，将民事再审事由限制在生效裁判的基础出现严重瑕疵和诉讼程序存在重大违法等方面；增加民事再审事由形式要件的规定，使民事再审事由成为可以在外观上能够轻易识别、在实务中具有可操作性的客观化、具体化情形。     

RACIAL DIFFERENCES IN EXPOSURE TO CRIME: THE CITY AND SUBURBS OF CLEVELAND IN 1990*

Do minorities live in higher crime neighborhoods because they lack the class resources to live in better areas, or do racial differences in exposure to crime persist even for blacks and whites of comparable backgrounds? Does living in the suburbs reduce exposure to crime equally for whites and blacks? This study analyzes the determinants of living in local areas with higher or lower crime rates in the Cleveland metropolitan region in 1990. Multivariate models are estimated for whites and blacks, with separate models for city and suburban residents and for violent crime and property crime. Within the city, exposure to both types of crime is strongly related to socioeconomic status for both races, but there are also strong independent effects of race on exposure to violent crime. In the suburbs, whites are concentrated in communities with low crime rates regardless of their social class. There are substantial class differences among suburban nonwhites, but even afluent blacks live in places with a higher violent crime rate than do poor whites.     

构建民事再审立案审查程序的思考

民事再审立案审查程序包括申诉复查案件的立案受理 (即立卷 )、审查、通知驳回或裁定再审三个主要环节 ,它与再审程序共同构成了我国完整意义上的民事审判监督程序。近年来 ,随着民事审判监督制度和审判方式改革的深入以及再审案件立审分立制度的推行 ,民事再审立案审查程序三个主要环节上存在的问题逐渐暴露出来。为此 ,应当反思和完善民事再审立案审查程序的基本原则 ,并从申诉复查案件立案受理条件、审查组织形式、审查方式、审查期限、再审立案标准、再审立案审批程序、诉讼文书样式等方面来考虑民事再审立案审查程序的构建。     

Spouse Abuse by Black and White Offenders in the U.S. Army

Black soldiers are overrepresented in the U.S. Army Central Registry of spouse abuse cases. For each year between 1989 and 1997, the number of black offenders outnumbers white offenders, while the white population outnumbers the black population. When age-specific rates per 1000 were computed, the rates for blacks were greater than those for whites in every age group. The highest rates for both races were in the 18- to 21-year age group. Age-specific rate ratios between blacks and whites for 1997 ranged from 3.4 for the 18- to 21-year-old group to 1.9 for the 42- to 46-year age group. All of the rate ratios except the one for the 42 to 46-year age group were statistically significant. Socioeconomic status (SES) is an unlikely explanation for these findings as SES was reasonably controlled. Culturally specific longitudinal studies are needed to clarify the reasons for differences in black and white spouse abuse incidents.     

Medicare program; photocopying reimbursement methodology. Final rule

This final rule increases the rate of reimbursement for expenses incurred by prospective payment system PPS) hospitals for photocopying medical records requested by Quality Improvement Organizations (QIOs), formerly known as Utilization and Quality Control Peer Review Organizations (PROs). We are increasing the rate from 7 cents per page to 12 cents per page to reflect inflationary changes in the labor and supply cost components of the formula. This final rule also provides for the periodic review and adjustment of the per-page reimbursement rate to account for inflation and changes in technology. The methodology for calculating the per-page reimbursement rate will remain unchanged. We are also providing for the payment of the expenses of furnishing photocopies to QIOs, to other providers subject to a PPS (for example, skilled nursing facilities and home health agencies), in accordance with the rules established for reimbursing PPS hospitals for these expenses.     

Assessment and conceptualization of competency to stand trial

Based on an examination of current methods used to define and assess a defendant's competency to stand trial, the authors propose an assessment and research instrument, referred to as the Interdisciplinary Fitness Interview (IFI). The IFI is a structured interview and rating scale designed to take into account both legal and mental health issues, and calls for an interdisciplinary approach to the assessment of competency. The purpose of the present study was to provide preliminary reliability and validity data on the use of the IFI in one jurisdiction. The results are discussed in terms of policy implications and the development of methods for evaluating competency with brief screening interviews in less restrictive settings.Support for this project was provided by a grant from the National Institute of Mental Health, Center for Studies in Crime and Delinquency (Grant No. 1 RO 1 MH 33669-01) to the Social Science Research Institute. The data reported here are taken from a larger research project designed to assess the use of a number of methods for assessing competency. Our principal concern in this article is with preliminary analyses of the Interdisciplinary Fitness Interview, a measure developed expressly for this project. The authors thank William Glackman and George Tien for their assistance in data analysis and Amiram Elwork and anonymous reviewers for their helpful comments on earlier drafts.