司法解释的错位与回归——以法律解释权的配置为切入点

法官在个案中作出解释是法律解释活动规律的必然要求,是我国司法活动复杂性的客观需要,是消除我国司法活动中诸多弊端的有效措施。要保障法官在个案中作出法律解释,就必须建立一支高素质的法官队伍,并为法官独立审判提供良好的环境。最高人民法院作出统一解释,是维护我国法制统一的需要,是法官在个案中寻求权威性解释的需要,是最高人民法院司法权威的体现。可以考虑在最高人民法院内部设置大法官会议,按照严格的程序,专职作出统一的法律解释。     

Subjects with agency? Children’s participation in family law proceedings

Galvanised by the UN Convention on the Rights of the Child, many jurisdictions now recognise children’s rights to participate in decisions that affect them. While such legal rights have increased, research on family law proceedings shows how children’s views can still be undermined, ignored or not even sought in decisions about them. This article uses the academic resources of childhood studies, to consider dominant and alternative narratives of children’s participation within Scottish family law. Drawing upon reported case law and empirical research, the article concludes that children’s participation gains protection by being institutionalised but children’s participation is attenuated because it is not recognised as relational and contextual. As rationality, consistency and autonomy are privileged, the weight given to children’s views is lessened by concerns about children being manipulated or distressed. Courts and their decisions may be child-focused, centring on children’s welfare, but they are not child-inclusive, involving children in decision-making.     

Legal responses to child sexual abuse cases in the Children’s Court of Victoria: study findings on a case-management approach

Child sexual abuse cases present Children’s Courts with distinctive challenges. The highly conflictual nature of child sexual abuse cases means they do not lend themselves to the usual adversarial court processes that characterise the conduct of Magistrate Court matters in Australia. With this in mind, the Children’s Court in Victoria established for 12 months in 2013 a pilot specialised judicial list (known as the ‘D’ List) which offered an intensive Magistrate-led case management approach to child sexual abuse cases in the Family (child protection) Division of the Court. The operation of the List was evaluated to assess the suitability and effectiveness of this approach, and to investigate the challenges associated with managing and deciding this class of cases. The findings confirmed that the List provided better management of cases and reduced delay. Given this, the Court is continuing the judicially proactive intensive case management approach and dedicated list for child sexual abuse matters and extending it to regional courts; believing it to be a more effective approach to managing and deciding this complex class of cases.