试论抢劫罪与强奸罪客观行为的异同

抢劫罪和强奸罪作为暴力型传统犯罪,两罪虽然侵犯的客体不同,但其客观行为在罪状描述上均为采用暴力、胁迫以及其他方法。虽然两罪的罪状描述相同,但所涵括的具体客观行为方式仍存在差别。分析两罪的本质,可以将两罪客观行为分解为压制被害人反抗的行为与侵害主要法益的行为。单纯从文理解释角度入手难以对压制被害人的行为加以明析,结合相关司法解释和法理进行体系解释,对两罪在这三种类型压制被害人反抗行为的异同进行分析。     

论行政接管的法律规制

行政接管是政府应对和处置金融机构和其它重要行业企业危机的行政强制措施,它的实施极易侵害被接管方及第三方的合法权益,目前我国法律对行政接管的规定很不完善。行政接管应定性为一种行政即时强制,我国应当通过制定《行政程序法》并结合有关单行立法的规定,从实体与程序两个层面对行政接管进行全面的法律规制。     

中日行政调查中强制权运用之比较研究

行政调查中最突出的一对矛盾就是行政机关获取信息的权力与公民自由权、隐私权、财产权等权利之间的关系,所以行政调查中强制力之运用成为了一个备受关注的问题。在日本的行政强制体系中,因为缺少类似于中国"行政强制措施"的类型化概念来概括在行政实体决定作出之前、以程序性义务为前提而实施行政强制行为,故而有必要将行政调查的概念独立出来,而我国行政强制措施的概念经过理论上的厘清改造,完全可以容纳行政调查中强制权的运用。日本行政调查中的强制权运用无论在事前、事中还是事后,都有着更加明确完善的程序保障,这些是值得我国去学习和借鉴的。     

Coercive capacity and the durability of the Chinese communist state

Why has the Chinese communist state remained so durable in an age of democratization? Contrary to existing theories, this article argues that the strong state coercive capacity has survived the authoritarian rule in China. We demonstrate that the Chinese Communist Party has taken deliberate actions to enhance the cohesion of its coercive organizations—the police, in particular—by distributing “spoils of public office” to police chiefs. In addition, the state has extended the scope of its coercion by increasing police funding in localities where the state sector loses control of the population. We use and rely on mixed methods to test this theory.     

Coercion, Consent and the Forced Marriage Debate in the UK

An examination of case law on forced marriage reveals that in addition to physical force, the role of emotional pressure is now taken into consideration. However, in both legal and policy discourse, the difference between arranged and forced marriage continues to be framed in binary terms and hinges on the concept of consent: the context in which consent is constructed largely remains unexplored. By examining the socio-cultural construction of personhood, especially womanhood, and the intersecting structural inequalities that constrain particular groups of South Asian women in the UK, we argue that consent and coercion in relation to marriage can be better understood as two ends of a continuum, between which lie degrees of socio-cultural expectation, control, persuasion, pressure, threat and force. Women who face these constraints exercise their agency in complex and contradictory ways that are not always recognised by the existing exit-centred state initiatives designed to tackle this problem.

The Effect of Coercion on Aggression and Mental Health Among Reciprocally Violent Couples

Researchers have not investigated mental health outcomes among couples who are reciprocally violent towards each other. The present study investigated differences in partner violence (psychological, physical, and sexual) and mental health symptoms (depression, anxiety, hostility, and somatic) between two types of reciprocally violent couples: situational couple violence (SCV) and mutual control violence (MVC). SCV couples use violence to address stressful family conflicts, while MVC couples use violence as a tool to control each other. Participants (N = 609) completed surveys that contained several instruments that measured past violence, coercive behaviors, physical injuries, and mental health symptoms. Results revealed that MVC reported significantly higher levels of violent perpetration and worse physical and mental health than SCV. These findings have implications for understanding the role of coercion in partner violence and mental health, which can be used for the development of appropriate mental health services for couples who are mutually violent towards each other.     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

Attitudes among stakeholders towards compulsory mental health care in Norway

Objectives

The Norwegian Mental Health Care Act allows use of coercion under certain conditions. Even though the current practice has been criticized, little empirical data exist about the attitudes towards compulsory mental health care.

Method

This study used Q-methodology to identify prototypical attitudes and to test possible differences of attitudes between groups of stakeholders towards the use of coercion in mental health care. Sixty-two respondents who represented six groups with different roles in mental health care participated: former patients, relatives of psychiatric patients, members of supervisory commissions, psychiatrists, other physicians, and lawyers.The participants were asked to assess the degree to which they agreed on 30 statements concerning use of coercion for the mentally ill.

Results

Three factors that in a meaningful way express different attitudes towards the question were found. The most widely shared attitude stated that a trusting relationship between patient and therapist is more important than the right to have an attorney. This attitude gives partial support to the present Mental Health Care Act. However, the second most common attitude argues that involuntary hospitalization, if necessary, should be decided in a court and not by the hospital doctor.

Conclusions

Differences in attitude could partly be explained by the respondents' role in mental health care. Both psychiatrists and “somatic” physicians expressed more agreement with the present legislation than the other stakeholders. The findings may have implications for the legal protection of mental health care patients.