破解“合同僵局”的新路径:限制权利滥用与合理信赖保护的统一

“合同僵局”的内涵及定位等基本问题模糊不清,导致法律适用中当事人合法利益难以得到有效保护,需要澄清。“合同僵局”本质是债权人双重主体身份的对立,此时债权人既是不行使单方解除权权利滥用的主体,又是合理信赖落空处于不利境地的主体。据此,建议从“合同僵局”本质来构建可行的合同拘束力逃逸机制:一方面应类型化交易中的权利滥用行为,依据伪“合同僵局”、双方型“合同僵局”以及涉他型“合同僵局”三种类型,明晰《民法典》第580条第2款司法解除的行使条件,避免法院与仲裁机构裁量的恣意;另一方面应限缩《民法典》第580条第2款的适用范围,赋予债权人充分赔偿并引入再交涉义务,系统性维护当事人的合理信赖。     

电力企业滥用市场支配地位行为的法律规制

随着技术革新和经济的迅速发展,作为传统自然垄断产业的电力行业已呈现出潜在的竞争性.目前,世界各国政府正通过一系列的立法活动对电力行业的竞争行为进行规制.电力企业滥用市场支配地位行为是一种妨碍市场竞争、损害消费者利益的非结构性垄断行为,对此类行为的规制是各国反垄断法的重要内容,属于完全的行为规制.     

Necrotizing fasciitis: manifestations, microbiology and connection with black tar heroin

A 10-year review of records of the King County Medical Examiner's Office found 87 deaths due to necrotizing fasciitis and related necrotizing soft tissue infections. In 64 of these cases there were sufficient details to provide an analysis of the manifestations, microbiology, and source of infection. One half (32) of the cases were due to injection of black tar heroin, the nearly exclusive form of heroin in the Northwest United States. Of those due to black tar injection, 24 were clostridial infections with various species represented, eight of which were Clostridium sordellii. Of the 32 cases not associated with drug injection, streptococcal species predominated, with Streptococcus pyogenes isolated in 14 cases. Only three of 32 cases not associated with injection drug use were clostridial infections. These differences were statistically significant. Staphylococcus aureus was isolated from 14 cases; two were methicillin-resistant strains. Overall, 28 of the 64 cases were polymicrobial infections, 15 due to black tar injection and 13 not associated with drug injection. This study supports the conclusion that necrotizing fasciitis due to black tar heroin injection is predominantly a clostridial disease, and in this way differs significantly from necrotizing fasciitis due to other causes.     

论注册商标的合理使用

随着市场经济的发展,法律对商标权的保护日益增强,但是这种保护的程度并非绝对的、不受任何限制的。因为任何权利都是有界限的,没有限制的权利就会被滥用,从而威胁公共利益。应确立商标合理使用制度,加强对商标滥用制裁,限制商标人的权利,维护他人正当合理使用“注册商标”的利益。     

一个半公正的司法解释--兼与苏力教授对话

对幼女的年龄的明知是奸淫幼女成罪的必要要件 ,此乃刑法关于奸淫幼女的规定的本意。司法解释只有遵循这一本意才具有合法性。最高人民法院关于奸淫幼女的批复要求以对幼女的年龄的明知作为奸淫幼女的入罪条件 ,符合立法原意 ,因而具有公正的成分。将奸淫幼女解释为严格责任罪 ,既不符合立法精神 ,也有悖法理。但是 ,最高法院的批复在将对幼女的年龄的明知作为绝对的入罪条件的同时没有将幼女的年龄的不明知作为绝对的出罪条件 ,因而又不是完全公正的。     

Introduction: contact and domestic abuse

ABSTRACT

This article introduces the special issue of the Journal of Social Welfare and Family Law on contact disputes and allegations of domestic abuse. It first describes the aims and findings of the International Symposium on Contact Disputes and Allegations of Domestic Violence – Identifying Best Practices at which the papers in the special issue were originally presented. It then outlines the position in England and Wales regarding allegations of domestic abuse in child arrangements cases, highlighting the difference between the ‘law in the books’ and the ‘law in action’. Thirdly, it discusses the research evidence on another prominent international approach to domestic abuse allegations – legislative presumptions against custody or unsupervised visitation/contact for abusive parents. The experience of presumptions in the USA and New Zealand suggests that a similar gap between ‘law in the books’ and ‘law in action’ exists, together with potential problems of legislative drafting. Finally, the article outlines the contributions of the other papers in the special issue to our understanding of international approaches to ensuring safety for children and resident parents in family proceedings where allegations of domestic abuse are raised.     

Conclusion: international best practices

ABSTRACT

Three approaches presented at the International Symposium on Contact Disputes and Allegations of Domestic Violence – Identifying Best Practices offered the possibility of overcoming the limitations identified in the preceding papers in this special issue. A human rights framework, trauma-informed practice and integrated services taking a whole-of-family approach can all help to achieve cultural change in contact proceedings and to ensure the availability of the resources needed to address the issue of domestic abuse holistically. Four Australian initiatives are described as examples of trauma-informed practice and integrated services: Legally Assisted Family Dispute Resolution (LAFDR), the Family Safety Model (FSM), the Family Violence Courts Division of the Victorian Magistrates Court (FVCD), and the Family Advocacy and Support Service (FASS). FSM and LAFDR are out-of-court initiatives which aim to address a family’s abuse-related needs before they get to a court. The FVCD and FASS pick up families whose cases have entered the court system, and at that stage attempt to offer a wrap-around service which addresses both legal and non-legal needs. Lastly, the article describes the European human rights framework, which is designed to operate in cases which are ultimately adjudicated by a court.     

The construction of allegedly abused children’s narratives in Scottish criminal courts

This study investigated lawyers’ use of social narratives surrounding child sexual abuse when questioning 66 5- to 17-year-old alleged victims in Scottish criminal courts using a mixed-methods approach. Thematic analysis found that the use of beliefs and stereotypes varied depending upon the lawyers’ role (defense/prosecution), children’s age, and the alleged victim-defendant relationship. These findings were investigated further using narrative analysis, which showed that, with increasing age and decreasing familiarity with defendants, narratives increasingly focused on the characteristics and actions of the victims rather than the defendants. Older children contributed more to narratives than younger children, but their contributions were only incorporated into the prosecutors’ narratives. Defense lawyers adopted more victim-blaming tactics as the narratives developed. Findings suggest that the criminal justice system, practitioners, and researchers must do more to recognize and guard against the reinforcement of stereotypes that may influence public rhetoric and jury decision-making.     

Exploring the social and emotional context of childhood animal cruelty and its potential link to adult human violence

ABSTRACT

Those who commit acts of animal cruelty may do so differently based upon how they individually experience such acts. These experiences may impact the link that exists between childhood animal abuse and later interpersonal violence. Limited research exists that examines how social and emotional factors such as being upset after committing animal cruelty may impact the progression from early acts of animal cruelty to later acts of adult violence against humans. Based on responses from 180 prison inmates in a Southern state, the current study examined the effects of onset and frequency of animal cruelty, covertness of animal cruelty, the commission of animal cruelty alone or in a group, and being upset after committing animal cruelty. Inmates who committed recurrent acts of childhood animal cruelty were more likely to commit recurrent acts of adult interpersonal violence.     

Grooming child victims into sexual abuse: a psychometric analysis of survivors’ experiences

This study sought to examine the psychometric properties of the Grooming subscale of the Computer Assisted Maltreatment Inventory (CAMI) in a sample of adult survivors of child sexual abuse. There are currently no other research measures that examine grooming events as experienced by survivors, which underscores the importance of a reliable and valid way of gathering this information. Participants (n?=?295) were adult survivors of child sexual abuse who completed this anonymous study online. The sample was collected through the use of adult survivor of child sexual abuse websites, trauma blogs, and survivor group pages on Facebook. Exploratory Factor Analysis, Confirmatory Factor Analysis, and Cronbach’s Alpha were used to ascertain the reliability and validity of this subscale. These analyses suggest that the Grooming subscale of the CAMI is a reliable and valid measure. This measure is an important addition to the body of research instruments that measure adult survivor of child sexual abuse experiences, particularly since this is the only instrument that examines grooming from this perspective.