试论民营化对中国行政法制之挑战——民营化浪潮下的行政法思考

在我国"全能政府"的传统治理模式难以满足社会发展需求的情势之下,民营化已经成为了一种现实的选择。民营化的范围可以包括由民间主体参与履行行政任务和提供公共服务的所有方式在内。作为一种国家与私人之间在"执行责任"上的分担模式,民营化并不会导致国家的"保障责任"发生变化。从理论上而言,民营化的推进应当有其界限,但是具体的界限还有待于明确。民营化的推进对我国传统行政方式和行政目标、政府传统监管制度、政府行政能动性、现有权利救济途径等都构成了冲击。行政法应当如何回应这一挑战,还有待于进一步的考察才能得出结论。     

Child abuse reporting trends: an unprecedented threat to confidentiality

Some recent interpretations of the child abuse laws are creating serious and unprecedented erosions of therapist/patient confidentiality. In contrast to the Tarasoff decisions and laws, the child abuse statutes introduced a new element of mandatory reporting which permits no discretionary alternatives and presents prospects of criminal penalties for failure to report. A recent development suggests a possible requirement for therapists to violate confidentiality for the sole purpose of punishing perpetrators. Overinterpretations of the laws by some child protective services have led to recommendations that long past child abuse must be reported, even when no current child is in danger. The California Attorney General's Office has issued a clarification stating that the child abuse statute refers to children and not to adults molested as children. A survey of forensic psychiatrists and psychologists shows that most perceived an ethical problem in reporting adults molested as children when no child is presently in danger, and the purpose of the report is solely for maximal legal self-protection. The survey indicates that fears induced by rigid and intimidating child abuse laws can influence therapists to act in ways most consider unethical. Recommendations are made for improving the current child abuse laws so that they accomplish their goals more effectively.     

Maltreatment-Related Fatalities: Issues of Policy and Prevention*

Maltreatment-related child fatalities, despite their relatively infrequent occurrence, constitute a serious social problem. Based on a review of national and unpublished state and local child fatality review team reports, we ascertained some risk factors that set parameters for prevention programs. Children under age four, and in particular those under age two, are at highest risk for maltreatment-related fatalities. Neglect-related deaths occur almost as often as abuse-related ones. Unrelieved crying and toilet training problems are “triggers” for assaults on young children. Males are frequently involved in abuse-related fatalities. People in their mid-twenties, rather than teenage parents are the most frequent perpetrators. About a third of maltreatment-related fatalities were known to child protective services. Implications of these findings, as well as the problem of predicting infrequently occurring events, are discussed in relation to programs of prevention.     

PROTECTING OUR CHILDREN FROM SEX OFFENDERS: HAVE WE GONE TOO FAR?

On July 27, 2006, U.S. President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act. This federal statute was created to serve as a tougher, more modern improvement of its predecessor in the ongoing effort to protect children from dangerous sexual predators. However, the Act did not amend the controversial federal mandate that all 50 states include the crimes of kidnapping and false imprisonment against a minor, committed by a nonparent, and without any sexual motivation or misconduct, as a crime requiring a wrongdoer to register as a sex offender. This Note demonstrates how the kidnapping and false imprisonment requirements of the Adam Walsh Act have led to a misuse of state sex offender registries to the detriment of the children they claim to protect. The solution that this Note proposes will provide each individual state with the freedom to decide how, if at all, these contentious offenses will fit into its sex offender registry, taking into consideration the state's unique statutory language, available child protective resources, and constitutional limitations. As a result, petty criminals who do not pose any real or specific threat to children will no longer be grouped with the most dangerous and violent sexual predators, child protective funds will be better utilized, and the public's attention will be refocused on the real threats to children, thereby satisfying the spirit and purpose of the Adam Walsh Act.     

Child Protection Law as an Independent Variable

Child protection professionals work in a multidisciplinary system in which the law and the family court play central roles and which collects an increasing amount of data. Yet we know little about what impact the law has on whether a child is removed by child protective services, is deemed neglected by a family court, or reunifies with a parent. Do state‐to‐state variations in child protection laws, or changes by individual states to their laws, lead to different outcomes for children and families? The dramatic variations in child welfare practice from one state to another suggest that legal variations do matter. Yet empirical research on these questions is scarce both because we collect too little data to measure all such issues, and, because we have failed to study the data we do have. This article is a plea for researchers to rectify that problem and for policymakers to improve data collection. Doing so would facilitate a more clear understanding of the law's effect on child protection outcomes and aid policymakers and advocates in identifying both promising and problematic practices and legal reforms.     

Child health policy in the U.S.: the paradox of consensus

The U.S. spends more of its total GNP on health services than any other nation, yet it has one of the highest infant mortality rates in the industrialized world. Young American children are immunized at rates that are one-half those of Western Europe, Canada, and Israel. In the mid-1980s, a consensus among policymakers on the need for federal action to improve child health services resulted in the expansion of Medicaid eligibility for pregnant women and young children and the separation of Medicaid eligibility from eligibility for AFDC. The current phase of child health policymaking includes discussion of much broader proposals for changes in health care financing and innovation in health care delivery. This examination of child health policy begins by reviewing the politics of maternal and child health services from the early twentieth century to the Reagan administration, including the role of feminist movements, the development of pediatrics, and the expansion of federal involvement during the 1960s. Next, the politics of Medicaid expansion as a strategy for addressing child health issues are discussed. Current critiques of child health services in the U.S. are examined, along with proposals to restructure health care financing and delivery. Central to the politics of child health policy during the 1980s and into the 1990s is the way in which child health has been defined. Infant mortality and childhood illness are presented as preventable problems. Investment in young children is discussed as a prudent as well as a compassionate policy, one which will reduce future health care costs and enhance our position in the international economy. Unlike other "disadvantaged groups," children are universally viewed as innocent and deserving of societal support. Framing child health issues in these terms helped to produce consensus on the expansion of Medicaid eligibility. Yet the issues beyond the expansion of Medicaid eligibility involve the restructuring of health care financing and delivery, and, on these issues, conflict is far more likely than consensus.     

“I WANT MY MOMMIES”: THE CRY FOR MINI‐DOMAS TO RECOGNIZE THE BEST INTERESTS OF THE CHILDREN OF SAME‐SEX COUPLES*

In child custody cases, courts will look to the best interests of a child to maintain visitation/custody rights only with the child's biological parent, not third parties. However, with a same‐sex couple, it is inevitable that one parent will not be the biological parent. Thus, when that parent is in a mini‐DOMA state, where same‐sex couples from non‐mini‐DOMA states do not have to be recognized, that parent will be viewed as a third party and lose all visitation/custody rights if the couple separates. This note advocates that mini‐DOMAs allow both the biological and nonbiological parents of a same‐sex couple to have visitation/custody rights of their children if it would be in the best interest of the children to do so.     

How the Framework of Implementation Science Guided an Evidence‐Based Dependency Parenting Program Initiative in Florida

In Florida, like most states, many of the parenting programs that are being utilized with families in the dependency system are non‐evidence based, and fail to provide quantifiable data on parent progress during and after completion of the programs. Providing pertinent information in court on parents’ progress in a parenting program, as opposed to simply monitoring attendance, is a growing need voiced by dependency judges and child welfare case management professionals. Clear, reliable information related to parenting skills acquisition and insight can help to ensure that families involved in the child welfare system have access to quality services that improve outcomes for their children. The purpose of this paper is to detail how a statewide initiative to increase the number of Florida circuits providing evidence‐based parenting programs to their clients utilized implementation science to guide their process, and the degree to which the participating circuits achieved full implementation of evidence‐based parenting programs.     

Adoptions Gone Awry: Enhancing Adoption Outcomes Through Postadoption Services and Federal and State Laws Imposing Criminal Sanctions for Private Internet Rehoming

The federal government should invest in adopted children who make up the future of the country and are in dire need of rehabilitation and therapy because of their past circumstances. If the government steps in to rescue vulnerable children from inadequate or abusive birth parents by removal, it should also intervene when adopted families are faced with behavioral problems of adopted children that the adopted parents cannot address on their own. Postadoption services need to be accessible and effective to ensure the success of adopted families. Assisting families in crisis postadoption will lower the instances of dissolution and rehoming and keep adoptive families intact. In cases in which postadoption services fail, uniform federal legislation is necessary to make it a federal crime to advertise children for adoption on the Internet without proper certification and state legislation is required to make it a crime to pass on adopted children to strangers without judicial consent, to dissuade Internet rehoming. Internet rehoming of adopted children should be a serious crime as it is tantamount to child trafficking.© 2014 Association of Family and Conciliation Courts

Key Points for the Family Court Community:
• Postadoption services need to be more accessible and more narrowly tailored to the needs of adoptive families to ensure the success of adoptions.
• Better postadoption services create better adoptive families and adoptive parents will not reach the point of dissolution or private Internet rehoming.
• Adoptive parents should be provided with information regarding all available postadoption resources after adoption is finalized and a government Web site should be created that lists all available resources.
• The federal government needs to provide funding to states that specifically target postadoption services.
• A uniform federal statute is required to punish parties who use Internet forums to avoid government oversight and privately rehome their adopted children.
• States should enact laws that criminalize the unauthorized interstate placements of children.

     

UNTIL DEATH DO US PART? WHY COURTS SHOULD EXPAND PRENUPTIAL AGREEMENTS TO INCLUDE TEN‐YEAR MARRIAGES

It has become apparent that marriage, while still strongly valued by society and government, has become less appealing to Americans as a whole. The changes taking place in society, whether economic or moral, have resulted in married couples becoming the minority in the United States. This decrease demonstrates that there is a need for reform, and that couples need to be provided with new options that will incentivize them to choose this union over cohabitation. This Note will discuss how expanding prenuptial agreements to allow couples to contract to the length of their marriage may help to accomplish that goal. This expansion will give couples the ability to tailor their relationship to fit their individual expectations and quell the reservations commonly associated with formalized relationships. Furthermore, such an expansion would be consistent with current law regulating premarital agreements and would still allow state governments to remain involved in regulation, making it less drastic of a reform than privatization.     

WHEN JAIL FAILS: AMENDING THE ASFA TO REDUCE ITS NEGATIVE IMPACT ON CHILDREN OF INCARCERATED PARENTS

The Adoption and Safe Families Act (ASFA) requires states begin termination proceedings when a child resides in foster care for fifteen out of the last twenty‐two months. Many states interpret this to mean that an incarcerated parent is unfit when they leave their child in foster care just because they are separated from their children. Parents and children can still have meaningful relationships even when separated. Thus, parental unfitness should depend on many factors such as the relationship with the child, age of the child, and ability to provide support for the child—not just the time spent away from the child. This Note advocates for the amendment of ASFA to include factors courts should consider when terminating the parental rights of incarcerated parents and encouraged states to focus not on a time frame for termination, but rather consideration of circumstances relevant to each individual family. States should incorporate the factors into their state laws. Further, states should actively work with prisoners and their children to help maintain contact and if possible, reunify families after incarcerations. These services will help prevent the need for termination after a parent completes their sentence and will help to reduce recidivism.     

Children's experiences of domestic violence: developing an integrated response from police and child protection services

Police notifications of incidents of domestic violence to child protection services constitute an acknowledgement of the harm that domestic violence inflicts on children. However, these notifications represent a substantial demand on child welfare services and the outcomes for children and victims of domestic violence have been questioned. This paper presents findings from the first UK study to examine these notifications in depth and examines the interface between the police and child protection services in responding to domestic violence incidents. The research reports on police interventions in 251 incidents of domestic violence involving children; the communication of information to child protection services and the subsequent filtering and service response. Social workers found that notifications conveyed little information on children's experiences of domestic violence. Forty per cent of families notified had had no previous contact with child protection services in that area, but those cases most likely to receive social work assessment or intervention were those where the case was already open. Notifications triggered a new social work intervention in only 5% of cases. The study also identified a range of innovative approaches for improving the co-ordination of police and child protective services in relation to children's exposure to domestic violence. Arrangements that maximized opportunities for police and social workers to share agency information appeared to offer the best option for achieving informed decisions about the appropriate level of service response to children and families experiencing domestic violence.     

Using recidivism data to evaluate project 12-ways: An ecobehavioral approach to the treatment and prevention of child abuse and neglect

Many programs and projects have been remiss at looking at outcome variables such as recidivistic child abuse and neglect. Presented here are program evaluation data which examine recidivism data over 5 years across more than 700 families. Families receiving services from Project 12-Ways, a multifaceted in-home ecobehavioral approach, were compared with families indicated in the same region who received child protective services other than those offered by Project 12-Ways. Families who receive services from Project 12-Ways are less likely to reinjure or neglect their children again.     

“全面二孩”政策背景下生育对女性养老金的影响——以广东省为例

本文基于对广东省的问卷调查分析认为,生育孩子数量对女性养老金有显著影响,女性会因生育遭受“养老金惩罚”,且“二孩”生育女性遭受的养老金损失高于“一孩”生育女性。可见,“生育收入惩罚”效应不仅作用于女性职业生涯期间,还作用于女性年老退休以后。因此,应坚持性别平等的原则,完善退休制度和公共托育服务,合理制定缴费年限、缴费指数、账户设置等社会养老保险制度标准,以削减女性“生育养老金惩罚”,提升“全面二孩”政策的实施效果。     

Characteristic Features of Severe Child Physical Abuse—A Multi-informant Approach

Minor child physical abuse has decreased in Sweden since 1979, when a law banning corporal punishment of children was passed, but more serious forms have not decreased. The aim of this study was to examine risk and background factors in cases of severe child abuse reported to the police. Files from different agencies (e.g., Social services, Adult and Child psychiatry and Pediatric clinic) for 20 children and 34 caretakers were studied. An accumulation of risk factors was found. It is concluded that when the following four factors are present, there is a risk for severe child abuse: 1) a person with a tendency to use violence in conflict situations; 2) a strong level of stress on the perpetrator and the family; 3) an insufficient social network that does not manage to protect the child; 4) a child that does not manage to protect him or herself. Thus, multiple sources of information must be used when investigating child abuse.     

People matter more than numbers: organized efforts against prison privatization in Florida

As the American prison population increased, so did the correctional labor force. Correctional officers in the United States have gained increased professionalism and strong representation since the 1980s. Meanwhile, many states have pushed to privatize state-run prisons in order to dampen correctional spending. Although a substantial amount of research has been conducted on the comparison of costs and qualities of confinement in public and private prisons, correctional officer labor has so far not been examined. In Florida, Senate Bill 2038, proposing the single largest expansion of prison privatization in US history, was defeated in February 2012 in the state Senate mainly as a result of lobbying by state correctional workers. By investigating the question of correctional labor from a critical perspective and by comparing salary levels, work benefits, training, and education opportunities in public and private prisons in Florida, the professionalism of correctional officers in state-run prisons vs. the working conditions their counterparts face in private facilities is contrasted. The findings suggest that adverse working conditions for correctional officers in private prisons may negatively impact correctional costs and efficiency in the longer term.     

Through a Foucauldian Lens: A Genealogy of Child Abuse

This theoretical paper takes on a difficult and dangerous argument: that ‘child abuse’ is socially constructed. By using Michel Foucault’s analysis of the complex interplay between power and knowledge, we may be able to explain the changing forms that the struggle against child abuse has taken, without minimizing the reality of the suffering that abuse causes. By examining the historical role that state and child welfare movements played in developing child protective services in North America, we discover how scientific epistemology and medical discourse on child abuse have come together to shape and construct societal beliefs about abusers. This analysis allows us to deepen our understanding of child abuse and the means to preventing it, as well as guides us in developing better and more informed social policies.     

Privatization and Organized Crime in Macedonia

The privatization in Macedonia is considered to be the finally found form of establishment of the interrupted evolution of the ownership. Of course, this is from the aspect of introduction and functioning of the state ownership in the socialistic system which denied the title of ownership. From the chosen model of paid privatization, it was expected that the privatization will be carried out lawfully, fairly, justly, relatively fast and transparently. This paper analyses the process of privatization from the aspect of its lawful performance and its fairness as consequential effect. The analysis specifically refers to one of the five segments of the privatization process—the privatization of socially-owned enterprises. Subject to this analysis are the views and opinions of employees and managers, as well as those of the government officials on issues whether the privatization is implemented as a political process and whether privatization is realized as a robbery. The results of the analysis can be summarized twofold: the employees and the politicians see the privatization as a political process and robbery, while the managers deny any connection with politicians and do not consider themselves oligarchs. In the analysis, these results are compared with some objective parameters of privatization: (i) the funds raised from the sale of social capital and (ii) proceedings initiated in front of state and judicial authorities based on suspicions of crime in the privatization process.     

Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform

Current trends intensify the longstanding problem of how the rule of law should be institutionalized in the welfare state. Welfare programs are being redesigned to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel implications for such basic rule-of-law issues as the choice between rules and standards, the relation of bureaucratic and judicial control, the proper scope of judicial intervention into dysfunctional public agencies, and the justiciability of "positive" (or social and economic) rights.     

Corporal Punishment and Kids: How Do Parent Support and Gender Influence Child Adjustment?

Previous research on corporal punishment has failed to consider the interaction of parent support and parent gender in predicting child outcomes. The current study examined whether parental support moderated the effects of corporal punishment on child outcomes (i.e., depression and aggression), and more specifically, whether the gender of the supportive parent moderated the effects of punishment from the opposite-sex parent. Results differed depending on the gender of the punishing and supportive parents, suggesting that parental support can be a protective factor in child outcomes but only under certain conditions. Mother support moderated the effects of father punishment on child depression but not child aggression. High corporal punishment by father was related to more child depression at both high and low levels of mother support. High levels of mother support only seemed important (i.e., children were less depressed) at low levels of father corporal punishment. In contrast, father support moderated the relationship between mother corporal punishment and child aggression but not depression. Children with high father support showed less aggression across all levels of mother corporal punishment. At low levels of father support, child aggression increased as mother corporal punishment increased. For depression, mother corporal punishment was positively related to child depression regardless of level of father support. These findings suggest differential effects for mother and father support and have implications for the treatment and prevention of negative outcomes in children who are physically punished by their parents.