Insurance Fraud and the Role of the Civil Law

Two UK Supreme Court decisions have considered insurance fraud. The first, Versloot Dredging BV v HDI‐Gerling Industries Versicherung (The DC Merwestone), concerned the use of a fraudulent device being harnessed to support a legitimate claim which, in the view of the majority, was an area of insurance law in need of re‐evaluation. The second, Haywood v Zurich Insurance Co, concerned the use of fraud to increase the settlement paid by the insurer and whether an insurer, which suspects fraud but has nevertheless chosen to settle a claim, is entitled to set aside the settlement under the tort of deceit where it subsequently discovers proof that it was in fact fraudulent. This case note examines not only the legal implications of the decisions and their likely impact on industry practice, it also focuses on the broader issue of the proper province of the civil law and whether general deterrence can be justified as a proper objective where the criminal law is deficient in punishing fraud because of its higher standard of proof.     

Judges’ Perceptions of Screening,Assessment, Prevention,and Treatment for Substance Use, Mental Health,and HIV among Juveniles on Community Supervision: Results of a National Survey

Juvenile Justice‐Translational Research on Interventions for Adolescents in the Legal System (JJ‐TRIALS) National Survey was funded in part to describe the current status of screening, assessment, prevention and treatment for substance use, mental health, and HIV for youth on community supervision within the US juvenile justice system. Surveys were administered to community supervision agencies and their primary behavioral healthcare providers, as well as the juvenile or family court judge with the largest caseload of youth on community supervision. This article presents the findings from the judges’ survey. Survey results indicated juvenile and family court judges were open to innovations for improving the court's performance, rated their relationships with collaborators highly, and appreciated the impact of screening, assessment, prevention, and treatment on judicial practices.     

Critical Normativity

Skeptics argue that statements about right and wrong are merely expressions of preferences. They are mistaken; values are not the same as mere preferences. When we assert preferences that affect others, we justify our actions by giving reasons that we believe others should accept. When we evaluate those reasons, we typically reject certain preferences as illegitimate. Values are different from preferences because they entail demands we feel entitled to make of each other, after critical reflection. But this does not require us to become moral realists who base value judgments on the existence of moral facts. Critical normativity adopts the paradoxical stance that value judgments are based on human will but that they can be right or wrong. Human beings cannot live without strong normative claims but we are obligated to be careful about them. This article illustrates this stance by telling three parables of justice.

Social Norms and the Feeling of Justice about Unequal Family Practices

After briefly retracing the origins of the present day unbalanced division of family work, this paper article summarizes results from three studies conducted with married adults and unmarried young adults from northern Portugal. The data support the idea that (a) unequal family practices do not change because traditional practices are social norms that orientate individuals’ behavior; (b) individuals do not comply passively to these social norms but consider that the normative practices are fair; (c) normative family practices are considered to be fair because women, as well as men, seem to gain benefits from traditional family organization. The social consequences for women of the maintenance of normative family practices are discussed.

On Justifying Punishment: The Discrepancy Between Words and Actions

This article reveals a discrepancy between the actual and stated motives for punishment. Two studies conducted with nationally representative samples reveal that people support laws designed on the utilitarian principle of deterrence in the abstract, yet reject the consequences of the same when they are applied. Study 1 (N = 133) found that participants assigned punishment to criminals in a manner consistent with a retributive theory of justice rather than deterrence. The verbal justifications for punishment given by these same respondents, however, failed to correlate with their actual retributive behavior. Study 2 (N = 125) again found that people have favorable attitudes towards utilitarian laws and rate them as “fair” in the abstract, but frequently reject them when they are instantiated in ways that support utilitarian theories. These studies reveal people’s inability to know their own motivations, and show that one consequence of this ignorance is to generate support for laws that they ultimately find unjust.

非法行医案件中行政执法与刑事司法的衔接——兼评最高人民法院有关司法解释

我国对非法行医分别在刑法和行政法中做出规定,二者概念及内涵的本质区别是行政违法与犯罪。非法行医案件中行政违法与犯罪的界限,应从主体和客观方面予以准确界分。为了非法行医案件中行政执法与刑事司法的有效衔接,应完善案件移送与接受机制,规范案件移送中的证据转化,厘清行政处罚与刑罚的关系。最高人民法院的有关司法解释量化了非法行医中违法与犯罪的界限,有利于司法实践,但仍有不足之处。     

新型权利的司法确立

新型权利,这一概念在于统摄一种现象,即在日新月异的社会生活中,人们基于新的利益要求在原有权利体系的基础上所提出的一类权利要求。本文探讨了新型权利的性质,新型权利对原有权利发展,以及新型权利司法确立方式的优越性。认为新型权利是社会秩序的产物,需要依赖司法程序得以确立,而不仅仅是制定者意志的体现,并在理论上分别从程序和实体两方面阐述了一项新型权利要进入原权利体系所必要的条件。     

Desert, Justice and Capital Punishment

Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capital punishment as a result of arbitrariness and discrimination, capital punishment should be abolished. Our targets in this paper are two recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that ‘levelling down’ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capital punishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty.

国际海洋法法庭若干法律问题的分析

国际海洋法法庭是根据《联合国海洋法公约》及其附件6增设的新的常设性国际司法机构。设立 国际海洋法法庭是争端解决机制的一大创举,并且在争端解决机制方面具有独特的作用和重要的地位。比如,它 确认了争端当事方资格、克服了海洋法本身的缺陷、实施了强制性的管辖权等。目前,国际海洋法法庭在实践中 主要是处理"船只和船员的迅速释放"和"临时措施"的案件。国际海洋法法庭对于中国也有重大的影响。     

Sexual Orientation Discrimination after Grant v South-West Trains

In Grant v South-West Trains [1998] ECR I-621, the European Court of Justice implied that, as a general matter, discrimination against an employee on the ground of sexual orientation did not violate Article 141 EC. This article argues that Grant rests on shaky foundations, in that it is conceptually inconsistent with the Court's earlier decision in P v S and Cornwall County Council [1996] ECR I-2143. Furthermore, the scope of Grant has since been qualified by decisions of the European Court of Human Rights – decisions which may well have undermined the status of the case more broadly. However these difficulties are ultimately resolved, the Court of Justice's treatment of sexual orientation discrimination exposes flaws in its approach as a self-proclaimed constitutional court.