民事司法程序的实证评估

民事司法程序具有多元化的目的,如保护民事权利、维护法律秩序、解决民事纠纷和保障正当程序等。我国的民事司法实践能够在多大程度实现上述目的,可以通过实证评估的方法进行测量。中国司法文明指数项目的调研数据,反映了我国民事诉讼在及时受理起诉、符合程序公正、自愿和合法调解、有效执行裁判、提供有效诉讼救济等方面的情况。其中,对调解自愿性、程序公正性的违反,是制约我国民事司法文明的两个突出因素。进一步的数据挖掘显示,这两个因素明显地降低了社会对法官形象的评价;法官强制调解与法官所感受到的压力源存在关联性。民事裁判受到不正当干预的现象,降低了对民事司法程序公正性的评价。     

医学临床实践教学中患者隐私权的保护

处理临床实践教学与患者隐私权保护的冲突,要求在隐私利益让渡过程中,充分体现患者的主体性,通过知情同意规则实现临床教学对患者隐私的规范化索取和利用.同时,在临床教学中,患者隐私权应有一定的限度,在特定情况下应排除隐私权的适用.     

完善医患纠纷人民调解机制的探索与思考

近年来,一种将医患冲突纳入素来被认为是中国特色的人民调解制度中之态势在全国各地蔚然成风。本文以上海为“视角”,阐述了上海引入人民调解化解医患纠纷的实践过程、突出亮点,重点剖析了当前仍困扰医患纠纷人民调解机制实施的诸多障碍,并对进一步完善医患纠纷人民调解制度提出对策建议。     

农地承包经营纠纷仲裁调解程序探析——以功能定位与法理定性为中心

农地承包仲裁属"准行政性仲裁程序",它是农地承包仲裁裁决的"前置程序",并能产生"一调终局"之程序效果。其功能应定位于农地承包经营纠纷之诉讼案件的分流,其程序启动无须仲裁协议,就其与诉讼的关系,当前立法定位于"或裁或审、一裁两审"具有现实之合理性,但在制度体系相对成熟之后,应及时转为"仲裁前置、一裁两审"。     

The motivation of European Union mediation in civil conflicts

ABSTRACT

Since the EU has expanded its common security focus in the 1990s, this important regional organisation has become the most frequent mediator in low-level civil conflicts worldwide. Under what conditions is the European Union (EU) likely to become involved in mediation in civil conflicts? Is the participation in mediation only explained by the EU's bias toward its near abroad, or is the EU more strategic? Some scholars have suggested that the EU's regional bias for its near abroad is the key explanation for the onset of EU mediation, but we propose that the reality of EU mediation presents a more nuanced story. We posit three explanations based on mediator bias: regional bias, economic bias, and normative bias. Overall, we argue that the EU will mediate in civil conflicts that are in its near abroad, but also where the EU has economic bias and where the EU can exercise its normative power in highly intractable conflicts. We test our hypotheses using statistical analysis of the UCDP low-level civil conflicts data from 1993 to 2004 and Civil War Mediation data from 1974 to 2005. We find strong support for our hypotheses, determining key factors that reveal the EU's strategic onset of mediation.     

Community of care from a victim-perspective: a qualitative study

Even if there has been some theoretical debate on the role of what has been called the ‘community of care’ in restorative justice (RJ) there has not been much research on, or analysis of, the implications of the role of significant others in its practice. This lack of reflection is especially evident in the case of the victims’ community of care, despite findings that would indicate a systematic lack of participation of victim’s supporters in restorative practices. Through the qualitative analysis of 35 interviews with victims of crime who consented to attend mediation (direct and indirect), an attempt to describe and discuss the characteristics of victim’s communities of care that may become relevant for the practice of RJ is made. Results indicate that, despite a victims’ need for company or support, victims tend to disclose few details about the offense, its consequences and the mediation offered as a way to protect their loved ones or to avoid possible negative reactions from their communities. Theoretical and practical implications of these findings are offered.     

Restorative justice in prisons

Restorative justice (RJ) has found significant utility outside the prison setting. For many reasons, it has not received the same level of consideration inside the institution. While not every case can, or perhaps should be considered for restorative justice processing inside the prison, some could easily fall into the broad purview range of restorative and transformative justice. We provide examples of RJ practices that exist in some prisons focusing on: offending behavior and victim awareness programs, community service work, and victim‐offender mediation, as well as prison systems that exhibit a RJ philosophy. Also considered are the effectiveness of prison RJ practices, and the limitations of such efforts. Although RJ has the potential to have a positive impact on the work of prisons and the experience of imprisonment, it has not found wide acceptance and is currently limited to a relatively small number of prisons and then often only delivered in partial form. We believe that RJ has a realistic future in prison settings and that the contradictions that may be identified are not debilitating.     

调解的技术合理性——一种中观的组织结构-功能论的解读

调解的同等组织结构,为嵌入该结构的民意沟通提供了平等而自由的“理想的言谈情景”,形成了“主体间性”和“主体间性结构”,为充分、深入而成功的民意沟通提供了可能和技术保障,并在沟通中滋生出一种建基于自身组织技术上的既不同于立法也有别于司法审判的沟通合法性,即技术合理性.制度的命运最终决定于自身技术.调解之所以能长存于古今中外,在于自身的技术合理性,而不是外在的意识形态因素.     

El régimen jurídico de la mediación civil y mercantil en conflictos transfronterizos en españa tras la ley 5/2012, de 6 de julio

This article analyzes in depth the regulation set forth by the Act 5/2012, of 6-7 as regards cross-border mediation. The article addresses some essential issues of this institution. Thus, the regulation of the agreement to mediate; the role played by mediators, their training and the recognition of their status; the law applicable to the merits of the dispute or the foreign recognition of any agreement reached between the parties after a mediation procedure are some of the issues studied in this article. The analysis highlights the relevance of the Act 5/2012 in Spain for promoting the use of mediation in Spain. But at the same time it shows the need for the Act to be fully implemented in order to solve some of the questions and problems that it still raises.