澳大利亚刑事推定证据规则适用研究

澳大利亚刑事诉讼证据规则中,刑事推定包括事实推定与法律推定,法律推定之中又涵盖可反驳的法律推定与不可反驳的法律推定.为了让证据在控辩双方中充分博弈使其越辩越明,刑事推定中的多数推定都是可反驳的推定,不可反驳的法律推定类型往往很少且逐渐成文化.可反驳的(事实与法律)推定之间常常存有冲突,各种可反驳的证据之间并无优劣顺序之分,解决冲突的路径则交由控辩双方的证明责任,法官依举证责任的分配来确定采取哪方证据.     

Introduction

Law and Philosophy -     

Communal Democracy and its History

Communes and communal thought are an essential part of the history of democracy. By recognizing this we can re-discover the connection between democracy and local, small-scale self-government, and see that democracy has a communitarian as well as a liberal foundation.     

Interacting with Consumer Advocates

This article explores the role of consumer advocacy. Those involved in public policy formation and administration – regulators, governments and other public policy makers – share an interest in effective consumer advocacy. Those who make our laws, as well as those who are custodians of its adjudication, compliance, monitoring and enforcement, share a common position with many consumer advocates – they all work to advance the long‐term interests of consumers.     

Applications of economic analysis to marital law: concerning a proposal to reform the discretionary approach to the division of marital assets in England and Wales

In this paper, I apply the economic analysis of law to examine recent proposals in England and Wales for the reform of the law affecting financial settlement after divorce. The starting point is an examination of the wide discretion currently afforded to the courts and the impact this has on incentives for divorcing parties and their legal representatives. Two specific reforming measures have been proposed to reduce this judicial discretion. First, a mathematical formula, such as a rebuttable presumption to divide equally the whole pool of assets upon divorce—a form of community property—could be used. It would be applied in the absence of agreement between the parties dividing assets, as in many countries in continental Europe. Second, legal enforceability could be accorded to prenuptial agreements, again after a continental pattern. Broadly, I conclude that changing to community property and enforceable agreements should be welfare improving but would need to be forward looking and applied to marriages, rather than divorces.     

Testing for AIDS: uses and abuses

In response to the public outcry for mandatory testing for AIDS, this Article explores the major issues concerning the identification of persons with AIDS in society. The Article first studies testing procedures and the purposes behind them to determine if a call for mandatory testing of the general populace would better achieve society's objectives for identifying individuals with AIDS. Concluding that testing should not be required of the population as a whole, the Article then explores whether testing should be required of certain subpopulations which society perceives as likely to have or to spread the disease. In this context, too, the Article concludes that mandatory testing would be unwarranted, and that funds proposed for mandatory testing would be put to better use in education and universal precautions to prevent the further spread of AIDS.