论形成权

我国民事法律规范中涉及到的撤销、解除、抵销、追认等权利均属形成权。形成权系德国私法理论化、抽象化的重要成果之一。从形成权的产生及理论基础、概念特色、种类和行使规则等方面,探讨这一民事权利的结构特色,有利于我们正确地行使形成权。     

APPLYING CASE STUDY METHODOLOGY TO CHILD CUSTODY EVALUATIONS

The child custody evaluation (CCE) can play a critical role in the resolution of custody disputes in the Family Court. There have been a number of significant methodological advances made in this field by various researchers over the past 20 years. It is timely that a scientifically‐based, integrative, methodological framework be developed within which existing methods might be situated. In this paper, case study methodology is proposed as an appropriate methodological framework for CCEs. The application of this methodology to CCEs is explicated with particular attention being paid to the methodological tasks of data collection and data interpretation. An orienting model is proposed to guide the collection of data, and strategies are described for applying population level research findings to individual cases in the form of risk and resilience models. Finally, coherence, analogy, and making methodology explicit are proposed as evaluation criteria for the CCE process and reports, and suggestions are made about outcome research.     

Portfolio Allocation and Policy Compromises: How and Why the Conservatives and the Liberal Democrats Formed a Coalition Government

The question of ‘who gets what?’ is one of the most interesting issues in coalition politics. Research on portfolio allocation has thus far produced some clear‐cut empirical findings: coalition parties receive ministerial posts in close proportion to the number of parliamentary seats they win. This article poses two simple questions: Why did the Conservatives and Liberal Democrats agree to form a coalition government and, secondly, did the process of portfolio allocation in the United Kingdom in 2010 reflect standard patterns of cabinet composition in modern democracies? In order to answer these questions, a content analysis of election manifestos is applied in this article in order to estimate the policy positions of the parties represented in the House of Commons. The results show that a coalition between the Tories and Lib Dems was indeed the optimal solution in the British coalition game in 2010. When applying the portfolio allocation model, it turns out that the Conservatives fulfilled the criteria of a ‘strong party’, implying that the Tories occupied the key position in the coalition game. On account of this pivotal role, they were ultimately able to capture the most important ministries in the new coalition government.     

针对儿童家庭暴力的伦理审视

1992年4月1日,《儿童权利公约》对我国生效。同年,我国明确提出＂儿童优先＂原则,并重视保护儿童利益的政府和国家责任。但传统的家庭伦理和家庭自治都认同父母对于子女有适度惩戒权,导致我国针对儿童的家庭暴力非常普遍且合理存在。本文拟从伦理角度对针对儿童的家庭暴力的原因进行分析,探讨解决针对儿童家庭暴力问题的新路径。     

New Labour’s communitarianism,supporting families and the ‘rationality mistake’: Part II

In Part I of this study, we argued that New Labour is keen to use legislation to promote what it sees as desirable family forms and to discourage other, less-favoured family practices. The codification of this approach in the 1998 Green Paper Supporting Families - and, in particular, the 'New Deal for Lone Parents' - was compared with recent empirical research on how people make decisions about their moral economies. We concluded that the government's approach is subject to a 'rationality mistake' - people do not make decisions in the way the government assumes and hence legislation can be inefficient or even oppressive. Here, we examine this contention further, this time focusing on chapter 4 of the Green Paper, indicatively entitled 'Strengthening marriage'. Using recent empirical research on mothers' views on marriage and cohabitation, we find further evidence of the 'rationality mistake', where the government has misunderstood the ways in which people make decisions about partnering and hence misplaces the role of family law. We conclude that supportive and flexible legislative frameworks are needed that recognize the varying ways in which people take moral economic decisions.     

Assumptions about children's best interests

The family justice system operates with a set of presumptions and assumptions about the welfare of the child which are assumed to be based on 'scientific' knowledge and which, therefore, are further assumed to carry the authority of both science and law. In practice, the result is that those working within the family justice system use powerful 'legal'notions whose provenance is often taken for granted and whose authority is unchallenged. Drawing on the different sets of assumptions operating in the family justice system and the youth justice system, this article explains, however, that law responds to messages originating in external discourses, notably science and politics, only in so far as its functions require and only in ways which 'fit'into legal communications. Viewed in this light, the presumptions are seen as working guidelines which should only be used with great care when dealing with the lives of children and young people. Whilst acknowledging that a full investigation of all children's cases would not be feasible, this article therefore argues for greater attention to the applicability and validity of prevailing presumptions.     

政府社会保障责任的核心价值观与构成理据研究

纵观社会保障发展史,建立社会保障制度已成为现代国家制度建设的重要一环。当前,我国政府社会保障责任“公平、正义、共享”核心价值观的重塑,是中国社会保障改革与发展的起点与归宿,也是中国社会保障制度建构、完善、可持续的决定性因素。应从政策特质、资源分配、资金筹集、服务输送系统建构四个层次对政府社会保障责任进行分解和系统分析,以期在制度价值理念与政府责任之间形成一以贯之的价值链,促进经济发展与社会发展相融合。     

Guidelines for Brief Focused Assessment: AFCC Task Force on Brief Focused Assessments.

The Association of Family and Conciliations Courts (AFCC) Task on Brief Focused Assessment was convened in 2007 to study the issues inherent in the use of brief focused assessment models in family courts. The resultant “Guidelines for Brief Focused Assessment” were approved by the AFCC Board of Directors in 2009 and are presented here to prompt discussion and further dialogue about this clearly needed practice.

Key Points for the Family Court Community
• Issue‐specific assessments are increasingly requested by family court judges
• Practice guidelines for clinicians conducting brief focused assessments (BFAs)
• Types of issues/questions appropriate for BFAs
• Advantages and pitfalls of BFAs
• Comparison of BFAs and comprehensive child custody evaluations

     

‘Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses

This article analyzes the use of a federal affidavit of support, a required document that forms part of all family immigration petitions to overcome public charge grounds of inadmissibility. The federal statute mandating affidavits of support was altered in 1996 in an attempt to make them contractually binding, even after the dissolution of marriage. Further, affidavits of support implicate not only obligations between spouses, but also deeming analysis for public benefit eligibility. Case law interpreting these affidavits of support is scarce and varied, but trends, patterns, and contested issues are emerging. Yet courts have not settled on any theory and practice for incorporating these affidavits into their decisions related to family dissolution. This article provides an introduction to affidavits of support and an initial effort to frame the most critical issues related to them that arise in family litigation. This article also highlights some of the key strategic issues and caveats for litigants and parties.

Key Points for the Family Court Community:
• An introduction to affidavits of support and the immigration law context in which it exists
• A review of trends, patterns, and contested issues emerging in available judicial decisions in state and federal courts
• Key strategic issues and caveats for litigants and parties on the use of affidavits of support

     

Ethical Advocacy for Immigrant Survivors of Family Crisis

The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues. Informed and effective advocacy on these issues in family court can make life‐changing, and even life‐saving, differences for immigrants. More specifically, immigration issues are germane to family court because certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings. After describing these forms of relief, and the family court's role in immigrants’ access to them, this essay analyzes how ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings.

Key Points for Family Court Community:
• The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues
• Certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings
• The substance of immigration‐related findings in family court, and their ultimate affect on family stability, are consistent with the core family court goal of supporting safety, well‐being, and permanency for children and families
• Ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings