论科协在完善司法鉴定技术标准及准入机制中的作用

司法鉴定是一项运用技术手段对案件事实进行确认的过程,是公正司法的基本前提。我国当前的司法鉴定体制,特别是有关司法鉴定的技术标准及准入机制方面,存在部门技术规定各自为政、职能交叉、相互冲突,鉴定机构和人员水平参差不齐,公信力低等问题。因而,完善我国现行的司法鉴定体制势在必行。从司法鉴定技术标准与准入机制的发展现状、比较研究、未来展望等视角出发,结合中国科学技术协会的性质和特色,分析科协在我国司法鉴定技术标准与准入机制中可发挥的作用,从而为构建科协参与、协调下的司法鉴定制度进行价值论的理论奠基。     

INSTITUTIONALIZATION OF MEDIATION

Mediation has evolved, grown, and been accepted within our society from preschools to doctoral programs and in courts, legislatures, and private industry. The passage of the Uniform Mediation Act, the birth of the Association of Conflict of Resolution, and the involvement of government bodies in the regulation of mediators indicate the importance of the institutionalization of mediation within every aspect of our society. This article focuses on a few of the hot issues currently swirling in the field raising questions for practitioners, researchers, and others involved in shaping access to conflict resolution policy and the future of the mediation profession.     

浅析投资准入阶段推行国民待遇的条约法的实践及影响

传统的国际投资条约一般将外资准入权限保留给缔约国,缔约国能自由地决定外资进入的领域和条件。虽然有些投资条约规定必须给予外国投资者以国民待遇,但国民待遇一般只适用于外资进入后的阶段。晚近出现的一些双边和多边投资条约中开始提出外资准入自由的概念,要求将国民待遇扩大适用到外资准入阶段,这些条约法的实践严重地削弱了东道国的外资管辖权,片面利于发达资本输出国的利益,应引起发展中国家的高度重视。     

Understanding the Potential Long-term Physical and Mental Health Consequences of Early Experiences of Victimization

Victimization in the USA is a substantial concern, despite a trend of decreasing crime rates. Victims of crime face a number of short-term consequences such as physical injury, fear and anxiety, and/or loss of property. Long-term consequences of victimization, however, may often be overlooked. Using the first six waves of the National Longitudinal Study of Youth, the current study examines the relationship between early experiences of victimization and long-term physical and mental health outcomes, including general health, access to and use of health care, and health risk behaviors. Results find that individuals who are victimized before the age of 12, especially those who experienced repeated bullying, are more susceptible to a number of physical and mental health issues such as negative perceptions of physical and mental health, smoking, subsequent victimization experiences, and homelessness. Public health concerns and policy implications of these findings are also discussed.     

国际组织管辖豁免：从绝对豁免走向限制豁免

作为国际法的主体,国际组织享有豁免权得到了普遍的承认。但是,随着国际法的发展,国际组织豁免权也遭遇了严重挑战。尽管如此,国际法的实践表明,国际组织管辖豁免尚未如国家管辖豁免一样从绝对豁免发展为限制豁免。当事人＂诉诸法院之权利＂作为国际组织豁免的制衡器,还没有发展成为习惯国际法,国际强行法也并不必然具有否定国际组织管辖豁免的效力。从人权保护角度讲,如果要维护国际组织豁免权以保障其独立行使职能,就要积极寻求完善相应的替代争议解决机制,保障当事人寻求正义权利的实现。     

车辆轨迹侦查

机动车的普及使得以机动车为交通工具或侵害目标的犯罪增加。对于涉车犯罪案件,通过车辆可识别特征对车辆进行追踪和认定,在此基础上进行车辆轨迹侦查有其现实必要性。从现场勘查、视频监控、交通违章、治安卡口等多方面可以获得车辆轨迹侦查的情报。车辆轨迹侦查的目标包括查清真实车牌、分析行驶轨迹、判断活动范围、查明附加特征、获取人员体貌以及关联其他轨迹等。探讨车辆轨迹侦查“从车到人”、多维轨迹拓展、“车案碰撞”串并案件侦查等三种侦查模式在侦查工作中的应用。     

Illegal access to information systems and the Directive 2013/40/EU

Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013, on attacks against information systems, came into force on 3 September 2013, replacing Council Framework Decision 2005/222/JHA. It maintains existing offences and criminalizes new activities such as illegal interception and the usage of certain tools for committing offences. The offence that is the focus of this article – illegal access to information systems – is set out in Article 3. It represents a change from the wording of Art 2 (2) of the Framework Decision 2005/222/JHA in that under Art 3 of the Directive the incrimination of illegal access to information systems now depends upon whether such access infringes a security measure. This paper provides an overview of the impetus for the introduction of cybercrime laws and analysis of the key provisions of the Directive before exploring whether the wording of Art 3 is a sensible legislative approach.     

论我国民事诉讼法的未来发展

2012年8月,全国人大常委会审议通过了新《民事诉讼法》。新法从基本原则到具体制度对民事诉讼及纠纷解决机制做了较大的修订和补充,这是近年来我国民事司法改革取得的重大成就之一,也是我国民事诉讼法现代化转向的一次努力。此次修法顺应了诉权保障宪法化和国际化的趋势,是“接近正义”理念在司法改革过程中的具体体现。为更有效地保障民众“获得公正审判的权利”,今后的民事司法改革应更加注重设计的整体性与统筹性,从而实现司法各要素全方位的变革。将“诉权保障”确立为民事诉讼法的最高目标,不但是完善立法的必备基础,也是公正司法的当务之急。     

HIGH‐CONFLICT CONTACT DISPUTES: EVIDENCE OF THE EXTREME UNRELIABILITY OF SOME CHILDREN'S ASCERTAINABLE WISHES AND FEELINGS

This article challenges an increasing orthodoxy regarding the weight which courts might place upon the expressed views of children in a specific situation—high‐conflict contact disputes. I am a child psychiatrist who acts as an expert witness within the family courts of England & Wales. I have conducted a statistical analysis of cases in which I have conducted assessments of children caught in such disputes between their separated parents. Fifty‐eight children met the criteria for inclusion in the study—the child's consistent opposition to contact with the non resident parent (NRP), despite the court having determined that there was no good reason to constrain contact. My assessment routinely included attempted observation of the child at a visit with the NRP. Despite their stated views most children had a positive experience in those visits that took place, and despite the fact that most had not seen the NRP for a long time. Overall there was a statistical association between increased resistance to contact and the greater age of the child and the longer the time during which no contact had occurred. However, the responses of children and young people were unpredictable and it was impossible to conclude that apparent maturity or intelligence was a guide to the reliability of their expressed resistance. The possible reasons for this unreliability are discussed. I emphasize that my sample of children is unusual as many of the cases had involved serious, though unfounded, allegations of abuse. In addition most of the children showed indications of having become “alienated” from the NRP. I conclude that courts might exercise caution when evaluating the views of children and young people in this situation, and emphasises that assessors should consider including at least one observation of the child at a prolonged visit to the NRP. Because of the new orthodoxy some parents may be tempted to misuse their child's right to a “voice” in court in order to achieve their own ends. Practitioners who advise courts may need to be more aware of these difficulties.