我国婚姻家庭法的变革与局限

我国2001年颁布的《婚姻法》顺应经济社会发展婚姻家庭关系调整的需要,修改并发展了1980年颁布的《婚姻法》,构建了多元化的夫妻财产制度体系,建立了离婚救济制度,强化了对妇女权益、无过错配偶方和未成年子女利益的保护,形成了家事纠纷多元解决机制的雏形。但新《婚姻法》对夫妻约定财产制的设立、变更与效力等规定不够明确,现行离婚救济制度未达到预期的调整效果,未成年子女最大利益原则体现不够充分,家庭暴力的调查、预防与救助机制以及家事纠纷调解制度不够健全等诸多问题,仍有待进一步发展和完善。     

试论新型农地关系的法律构建

农地关系是与农村繁荣,农业稳定和农民利益息息相关的土地法律关系,市场经济的不断发展呼唤农地关系的变革和农地制度的创断。而现行农地关系存在着主体和权能方面的缺陷,影响了科学的农地权利体系的构建;而构建新型农地关系即是要强化农地所有权人,农地使用权人等农地权利人与农地的私法联系,期待为农地权利人提供较为充分的法律保护。本文对有关农地关系的法律规范进行了一些新的思考。     

The Co-occurrence of Child and Intimate Partner Maltreatment in the Family: Characteristics of the Violent Perpetrators

This study considers the characteristics associated with mothers and fathers who maltreat their child and each other in comparison to parents who only maltreat their child. One hundred and sixty-two parents who had allegations of child maltreatment made against them were considered. The sample consisted of 43 fathers (Paternal Family—PF) and 23 mothers (Maternal Family—MF) who perpetrated both partner and child maltreatment, together with 23 fathers (Paternal Child—PC) and 26 mothers (Maternal Child—MC) who perpetrated child maltreatment only. In addition, 2 fathers (Paternal Victim—PV) and 23 mothers (Maternal Victim—MV) were victims of intimate partner maltreatment and perpetrators of child maltreatment and 7 fathers (Paternal Non-abusive Carer—PNC) and 15 mothers (Maternal Non-abusive Carer—MNC) did not maltreat the child but lived with an individual who did. Within their family unit, 40.7% of parents perpetrated both intimate partner and child maltreatment. However, fathers were significantly more likely to maltreat both their partner and child than mothers and mothers were significantly more likely to be victims of intimate partner violence than fathers. PF fathers conducted the highest amount of physical and/or sexual child maltreatment while MC and MV mothers perpetrated the highest amount of child neglect. Few significant differences between mothers were found. PF fathers had significantly more factors associated with development of a criminogenic lifestyle than PC fathers. Marked sex differences were demonstrated with PF fathers demonstrating significantly more antisocial characteristics, less mental health problems and fewer feelings of isolation than MF mothers. MC mothers had significantly more childhood abuse, mental health problems, parenting risk factors and were significantly more likely to be biologically related to the child than PC fathers. This study suggests that violent families should be assessed and treated in a holistic manner, considering the effects of partner violence upon all family members, rather than exclusively intervening with the violent man. Requests for reprints should be sent to Louise Dixon, Center for Forensic and Family Psychology, School of Psychology, University of Birmingham, Edgbaston, Birmingham, B15 2TT, United Kingdom.     

Establishing a Relationship Between Behavior and Cognition: Violence Against Women and Children within the Family

The goal of our study is to determine whether a person’s cognitions regarding violence against women and violence against children within the family are associated with recourse to violent behavior toward them; and (2) the extent to which an adult who has a narrow conception of violence against women also has a narrow conception of, tolerant attitudes toward, and biased attributions with regard to violence toward children. Thirty men and 32 women took part in the study. Generally speaking, respondents more easily recognized physical aggression than psychological aggression, rated it more severely, and used it more often against their children than their spouses. Further, cognitions regarding violence against women and of parental violence against children appear to be strongly associated. Our results also suggest that the conception of violence toward women is associated with violence toward children.     

影响中国检察制度形成的主要因素

中国检察制度是中国社会发展过程中的必然选择。作为社会的上层建筑和司法制度的重要组成部分,中国检察制度的形成和发展受到多重因素的影响。列宁的法律监督理论和前苏联的检察制度是引导中国检察机关被定位为国家法律监督机关的决定性因素;西方检察制度,特别是大陆法系的检察制度,是确定中国检察制度司法功能的基本参考依据;中国传统法制文化以及历史上的司法制度是影响中国当代检察机关领导体制和管理模式形成的主要因素。     

The Street‐Level Response to Relationship Breakdown: A Lesson for National Policy?

In January 2001, the Government announced its intention to repeal the divorce reforms contained in the Family Law Act 1996. The ‘story’ of the Act is largely one of compromise: between a backward‐looking idealism, casting divorce law in the role of supporting marriage, and a more forward‐facing pragmatism, accepting the necessity of engaging with social reality. The result was legislation that sought both to save and end marriages – although a key reason for proposing the Act's repeal was an alleged failure to save marriages. This national approach to relationship breakdown contrasts sharply with that at ‘street‐level’, where work aims to provide a service catering to the diversity of modern family life. The apparent success of this approach prompts the question of whether there are lessons for national policy. Drawing on a series of interviews with national policy‐makers and street‐level workers, this paper compares national and local perspectives and suggests that a new mind‐set and approach, akin to that operating on the ground, is needed at national level if workable divorce law reform is to be achieved.     

Racial and Ethnic Heterogeneity,Economic Disadvantage,and Gangs: A Macro‐Level Study of Gang Membership in Urban America

There is a lack of macro‐level gang research. The present study addresses this shortcoming by providing a theoretically informed analysis of gang membership in large US cities. More specifically, our goal is to determine whether racial and ethnic heterogeneity conditions the relationship between economic disadvantage and gang membership. Three separate sources of data are used in this study: U.S. Census 2000, Law Enforcement Management and Administrative Services 2000, and National Youth Gang Survey 2002–2006. A series of weighted least‐squares regression models are estimated, finding that both economic disadvantage and racial and ethnic heterogeneity exhibit independent and additive effects on gang membership. In addition, the results show that racial and ethnic heterogeneity has a conditioning relationship with economic disadvantage. Furthermore, our expanded operationalization of the Blau heterogeneity measure indicates that prior research may have underestimated the effects of heterogeneity. The authors discuss these findings in the context of existing gang research and offer directions for future research.     

Family Drug Treatment Courts As Comprehensive Service Models: Cost Considerations

Literature on family drug treatment courts (FDTCs) suggests that parental participation in these courts is associated with improved substance abuse treatment and child welfare system outcomes. Despite these beneficial outcomes, FDTCs serve only 7‐10% of eligible child welfare involved families. As part of a FDTC evaluation, this FDTC site sought to provide stakeholders with information about costs and benefits. Considering the program costs alongside the cost avoidance from reduced time in foster care, this analysis determined that FDTC participation resulted in a net savings per child of $9,710. The cost component of the evaluation proved valuable, challenging, and informative.     

村规民约认定农民集体成员资格的成因、局限与司法审查

农民集体成员资格认定关系到农民集体成员的个人利益和农村社会稳定,应该给予特别关注。立法缺失、经济利益驱动、传统思想影响等因素的交汇作用,促使现实生活中大量存在着利用村规民约认定农民集体成员资格的做法。在制定法存在漏洞的特定情境下,通过村规民约对农民集体成员资格进行认定是不得已之选择。民事司法过程中首先应该尊重村规民约,但是也需要对村规民约进行必要司法审查。在司法审查过程中应该区分不同规则赋予不同法律后果。     

论我国家庭暴力的公力救济

家庭暴力是一个全球性的问题 ,之所以受到特别关注 ,是因为它不仅是一个突出的社会问题 ,而且极大地危害社会治安、家庭稳定以及妇女儿童的身心健康。公力救济作为对家庭暴力的有效防治途径之一 ,结合我国目前的立法及司法现状 ,对其进行理论探讨