司法对法律体系的完善

人民法院的司法活动对完善法律体系具有不可替代的独特作用。司法通过作用于法律体系的微观向度、调适过程、法与社会联系的建立、成文法固有缺陷的克服来完善法律体系。完善的具体方式包括司法解释、法律解释、指导性案例、司法审查、司法建议、参与和配合立法、送请有权机关审查和裁决、提出法律案等。对于通过司法完善法律体系,需要树立正确的理念。     

论保险合同诉讼时效规定的理解和适用——对《中华人民共和国海商法》第264条的思考

对于《中华人民共和国海商法》第264条、第267条有关诉讼时效的规定,学界及司法实践中有不同的解读,对此,从诉讼时效制度的本质出发,考虑保险合同纠纷的特别之处,从司法实践、立法目的及理论研究层面分析论证保险合同诉讼时效的性质。经过研究认为：在保险事故发生后,保险人作出拒赔意思表示前,被保险人受损害的只是被保险标的物的“物权”,而不是保险合同约定的“保险金求偿权”。因此,《中华人民共和国海商法》第264条规定的请求时效,不应理解为“诉讼时效”,并据此提出海上保险案件诉讼时效问题的具体解决建议。     

‘That wicked rule,that evil doctrine … ’: Reforming the Law on Disclosure in Insurance Contracts

The Consumer Insurance (Disclosure and Representations) Act 2012, which abolishes the consumer assured's duty to volunteer information, heralds the first successful outcome of the English and Scottish Law Commissions current insurance contract law reform project. This paper outlines the defects of the common law duty of disclosure which the Law Commissions sought to address. It goes on to consider why previous legislative attempts failed, the self‐regulatory measures introduced by the insurance industry as a means of resisting earlier pressure for statutory intervention, and how that resistance broke down. Finally, it examines the scope of the 2012 reforms and the current consultation being undertaken in respect of the duty of disclosure in relation to business insurance. It concludes by assessing the significance of the statute in providing a necessary impetus for future insurance law reforms.     

Does the Criminal Justice System Treat Domestic Violence and Sexual Assault Offenders Leniently?

We examine whether men who physically assault their female partners or who commit sexual assault receive more lenient treatment than offenders who commit other types of assaults. Analyses of the National Violence Against Women Survey do not support these hypotheses. Rather, they suggest that women who assault their male partners are particularly likely to avoid arrest. In addition, both men and women who assault partners are more likely to avoid conviction than other offenders. Evidence suggests that there has been an increase over time in rates of arrest and conviction for partner violence.     

Gender and Justice in the Progressive Era: An Investigation of Saint Louis Juvenile Court Cases, 1909–1912

There is increased interest in the history of the juvenile court and its role in the social control of youth. In this context, feminist scholars have emphasized the long‐standing legacy of the court's attempt to control girls' violations of gender images, particularly sexual behavior and status offenses. This perspective argues that girls are penalized more harshly than boys, despite being charged with less serious offenses. The present study tests hypotheses about the relationships between gender and charge, prehearing detention, and disposition using St. Louis juvenile court records for the years 1909–1912. Qualitative content analysis is used to probe more deeply the connection between gender and sexually based charges in the early history of the St. Louis juvenile court. Findings indicate that girls were subject to harsher forms of social control than boys, despite less serious charges, and that sexual behavior was described and treated much differently in girls' records than in boys'. Connections to contemporary practices are delineated.     

Assessing the Impact of the Juvenile Detention Alternatives Initiative (JDAI): Predictors of Secure Detention and Length of Stay Before and After JDAI

The Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI) seeks to reduce the reliance on pre-dispositional detention. While anecdotal evidence indicates that the program has enjoyed some success in reducing detention populations, no controlled study has assessed the efficacy of the program. The current study investigated the impact of JDAI following its adoption in one Virginia juvenile court. Specifically, using data on all juveniles referred to intake over a seven-year period, the research analyzed predictors of detention and length of stay before and after JDAI. Results indicate that after the implementation of JDAI, greater emphasis was placed on legal factors including offense seriousness and prior record, though the increased emphasis was greater for non-whites than for white youth. Additionally, results suggest that after JDAI’s adoption, older non-white youth were more likely to receive secure detention while non-white females received some degree of leniency compared to non-white males.     

Public Support for Preventive/Corrective Remedies Against Miscarriages of Justice in Capital Cases

The present study examines public beliefs of Florida citizens about the prevalence of miscarriages of justice in their state and their level of support for various proposed remedies. The study also examines various correlates of punishment beliefs and death penalty opinions. Using a self-administered survey of venire persons called to jury duty, this study found that the public believes that the prevalence of miscarriages of justice in capital cases is quite high. The public is supportive of nearly all of the proposed remedies measured and they are willing to pay more taxes to support the implementation of such proposals. At the same time, respondents report feeling that the officials responsible for such miscarriages of justice should be severely punished. Importantly, the results show powerful evidence of broad societal consensus on each of these issues. Legal and criminal justice policy implications of these findings are offered.     

公用事业公私合作合同的法律属性与规制路径——基于经济法视野的考察

公用事业公私合作合同是国家规范公用事业公私合作活动的重要法律工具,具有经济法的属性,应接受公法与私法的双重规制。就公法规制来说,政府应保留一定的公权力,并承担相应的义务,同时,私人部门也应承担一定的公法义务,其部分私权利要接受公法的限制。就私法规制来看,主要体现在基于契约精神对政府公权力进行限制,并要求政府承担相应的合作风险,以及在违反合同义务的时候,承担相应的民事法律责任。     

从法的价值角度看共同隐私保护

家庭自古以来是最大的秘密区,保守家庭秘密反映到法律上是对共同隐私的保护。通过剖析隐私权中的共同隐私的概念及其法律关系,结合法的目的价值及其冲突解决原则,得出共同隐私保护应从法律限制、公共利益限制和特殊群体限制三个方面来平衡共同隐私保护中的系列冲突。