试论行政立法与人权保障——兼以行政许可为例分析

行政立法应当以保障和不侵犯人权来证成自己道义上的正当性.为了保障人权,必须对行政立法的权限和目标进行控制.行政立法不得限制基本人权,对非基本人权的限制也要程度适当.行政立法必须制约行政权力、保障行政相对人权利.在行政许可设定上只有坚持法律保留原则、依法设定原则、许可设定公开原则、公众参与原则,限制行政许可设定的范围,贯彻行政立法的"无为"精神和有限政府的理念,才有利于保障公民的权利与自由.     

知识产权非理性扩张的一种认知模式

本文首先描述了在以美国等发达国家的极力鼓噪下知识产权非理性扩张的一般图像,在此基础上,笔者从知识产权制度与所有权制度哲学理念之差的视角切入,对知识产权制度的非正常发展进行了剖析和解读.文章认为,正是我们把所有权制度的基本理念错误地嫁接到知识产权制度上,才导致了今天知识产权制度的失范.基于前面的分析,文章还对中国究竟应制定物权法还是制定财产的基本法展开了探讨,文章的结论是我们应当制定财产的基本法,这有利于我们纯化知识产权制度和所有权制度这两套各别的制度系统,使二者在其自在自为的世界里获得健康和正常的发展.     

从佘祥林案谈公安执法工作中的人权保障

据现有材料,不能排除公安机关在佘案办理中存在严重侵权行为。公安执法工作中侵犯人权的问题屡屡发生,有执法思想偏离本源、法律法规尚不完善、执法定势难以纠正、执法监督存在缺位等原因。公安执法要加强人权保障,必须牢固树立“尊重和保障人权”的理念,形成合理的执法观念,完善并严格执行相关法律法规,更新执法思维、行为模式,切实加强执法监督。     

中国少数民族人权述评——基于政治权利的角度

中国少数民族人权从主体的角度包括集体人权和个体人权;其中基本的政治权利是人权的重要组成部分;少数民族人权的实现程度在一定程度上取决于人们对于基本政治权利内涵的理解和制度理性设计。     

论我国公民基本权利的诉讼救济

立法机关、行政机关、司法机关以及公民、社会组织都有可能侵犯公民的基本权利,诉讼救济应当是公民捍卫基本权利最有力的方式。但我国立法对基本权利的诉讼救济还尚未有明确规定,实践中对基本权利的诉讼救济也呈不规范状态。制约公民基本权利寻求诉讼救济的根本原因在于我国的法院无权也不宜主管宪法诉讼。建立宪法法院专司宪法诉讼是我国宪政体制下较为理想的选择。     

知识产权预警机制及政府在其中主导地位之分析

知识产权预警机制是指能够灵敏、准确地昭示有关知识产权方面的风险前兆,并能及时提供相应警示的机构、制度、网络、举措等构成的预警系统.其在当前世界各国将知识产权作为一种新贸易壁垒、中国企业在海外纷纷涉诉的情形之下具有极其重要之意义,以中国政府为主导建立知识产权预警机制具有较大的可能性与可行性.     

Longitudinal Association Between Parenting Practices and Early Sexual Risk Behaviors among Urban African American Adolescents: The Moderating Role of Gender

A sample of 274 African American families, living in impoverished neighborhoods with high HIV rates, participated in a longitudinal study of adolescent sexual development when children were in the 4th or 5th grade. Self-report and observational measures of parental warmth and parental behavioral control were collected from adolescents and parents at Time 1, and youth reported if they had initiated intercourse at Times 1 and 2. Regression analyses suggested that gender moderated associations between parental behavioral control and engagement in adolescent sexual behaviors. More generally, findings suggested that boys reared in low control/high warmth (i.e., permissive) homes and girls reared in high control/low warmth (i.e., authoritarian) homes were particularly at risk for early sexual behaviors. Clinical implications and directions for the future research are discussed.Doctoral Candidate in Clinical Psychology at Loyola University Chicago. Received her B.S. in Psychology and African & African American Studies from Duke University and her M.A. in Clinical Psychology from Loyola University Chicago. Her major research interests include the role of family and mental health factors in HIV risk exposure among urban African American adolescents.Professor, Department of Psychology, Loyola University Chicago. Received his Ph.D. in 1987 from Virginia Commonwealth University. His major research interests are family relations during adolescence, physical disabilities, pediatric psychology, developmental psychopathology, and statistical applications in psychologyAssociate Professor of Psychology in the Department of Psychiatry, Institute for Juvenile Research, University of Illinois, Chicago. Received her PhD in Child Psychology from the Institute of Child Development at the University of Minnesota in 1987. Her current research interests include developmental transitions during adolescence, as well as from pre-school to middle childhood, among typically developing children as well as children with special needs     

Parenting and Internalizing and Externalizing Problems in Moroccan Immigrant Youth in the Netherlands

This study explores the relationship of parenting to internalizing and externalizing problems in Moroccan immigrant youth in the Netherlands. Interviews were conducted with 713 Moroccan immigrant parents, using the Child Behavior Checklist and the Nijmegen Rearing Questionnaire. Child rearing varied with socioeconomic status and psychological acculturation level of the parent, and gender and age of the child. In accordance with studies in Western populations, high levels of affection and monitoring were associated with low levels of problem behavior and high levels of discipline were associated with high levels of problem behavior. However, in contrast to studies in Western populations, a positive relationship was revealed between affection and discipline, and the univariate associations between discipline and problem behavior were modest. Discipline and internalizing problems were unrelated in low SES families, whereas a positive relationship was found in high SES families. The relationship between monitoring and externalizing problems was age-specific: We found a negative association for adolescents and no association for children. Assistant Professor at the department of Interdisciplinary Social Sciences of the University of Utrecht. She received her Ph.D. in Child & Adolescent Psychiatry at the Erasmus MC/Sophia, Rotterdam. Her research interests concern the psychological development of immigrant children and adolescents. Interdisciplinary Social Sciences, Faculty of Social Sciences Professor of Developmental Psychopathology at the department of Interdisciplinary Social Sciences of the University of Utrecht. Her research in the past years has been focused on mental health problems and addiction in adolescents and adults, and on the importance of the risk factors related to migrant status and ethnicity. Interdisciplinary Social Sciences, Faculty of Social Sciences Received her Ph.D. at the University of Leiden in 1991. She is a Senior Researcher and head of the research group ‘Multicultural Questions’ at the Verwey-Jonker Institute. Her field of study is socialization and psychological development of children of ethnic minorities. Verwey-Jonker Institute, Kromme Nieuwegracht 6 Dutch Child and Adolescent Psychiatrist and Associate Professor at the Department of Child and Adolescent Psychiatry at ErasmusMC/Sophia, Rotterdam. His research examines levels of emotional and behavioral problems as well as predictors of these problems in Turkish and Moroccan immigrant youth in the Netherlands. Dr. Crijnen is also the principal investigator in studies on the prevention of disruptive behavior and substance use in children and adolescents through school- and parent-based interventions. Department of Child & Adolescent Psychiatry     

Reforming Relocation Law: A Reply to Prof. Thompson

This article provides a response to Prof. Thomson's critique, noting many points of agreement and also the broader consensus that is emerging among experts in the field. The research evidence, and the wider body of knowledge on children's well‐being generally, supports the proposition that relocation is a risk factor for children after parental separation but provides no support for a general presumption either in favor of, nor against, relocation. Nor should it be assumed that the interests of children are the same as those of their primary caregiver. We defend our three questions arguing the need in an adult‐centric debate to focus resolutely on children's interests rather than on adult rights. Both Prof. Thompson's approach and our own involve guided decision making with the child's best interests as the paramount consideration—his through weak presumptions based upon research about how judges respond to relocation issues and ours through focused questions based on research on how parents and children respond to relocations issues. We do not consider that codifying the existing practices of the courts represents real reform. We identify various risks involved in using presumptions, but note that, in jurisdictions with limited publicly funded resources for individual case assessment, presumptions, burdens or guidelines may be needed to offer rough justice to impecunious parents.

Key Points for the Family Court Community
• Notes points of emerging agreement on relocation within the research community
• Explores the differences between the use of presumptions and focused questions and highlights the role of empirical research of the lived experience of children and families postrelocation disputes
• Identifies how the level of public resourcing for the family law system may impact upon decisions about the substance of the law concerning relocation

     

Out on a Limb: Appointing a Parenting Coordinator with Decision‐Making Authority in the Absence of a Statute or Rule

This Article addresses the issue of whether a court may appoint a Parenting Coordinator (PC) with decision‐making authority in the absence of a statute or court rule. The Article identifies possible sources of authority for the appointment of a PC with decision‐making authority in a state with no authorizing statute or court rule. It also provides a paradigm for constructing an appointment that allows for the benefits of Parenting Coordination but does not delegate decision‐making authority to an extent that it would constitute an impermissible delegation of judicial authority.

Key Points for the Family Court Community:
• Where a court seeks to appoint a PC with decision‐making authority in the absence of an authorizing statute or court rule, the court may find some authority allowing the appointment in (1) its equitable authority over child custody and visitation, (2) its authority to enforce its own orders, or (3) its authority to appoint other extrajudicial assistants such as a special master or mediator.
• Where a court seeks to appoint a PC with decision‐making authority in the absence of an authorizing statute or court rule, the court must craft an appointment that delegates enough decision‐making authority to the PC for parenting coordination to be effective yet, at the same time, not so much decision‐making authority as to render the appointment an impermissible delegation of a judicial function, specifically:
  • The PC's role should be limited to assisting the parties in implementing custody and visitation terms already decreed by the trial court.
  • A PC should be appointed only if the parties to the divorce consent to the appointment or if the trial court makes a finding that the case is a high‐conflict case.
  • The parties must have the opportunity for the trial court to meaningfully review any decision of the PC so that the trial court retains ultimate decision‐making authority.