相对积极主义刑事司法观的提倡

新的十六字方针是法律体系建成之后的必然选项,其实质是追求法律的正当性与司法的公正性,提倡一种相对积极主义的司法理念,强调社会安全与司法人权保障的平衡。司法积极主义是对简单遵循文义的专属主义反思化的结果,并非意味着基于秩序安宁而造法。司法克制主义和积极主义,都有相同的出发点。二者的根本分歧在于如何理解解释法律、寻找法律和创造法律的关系。绝对的积极主义因存在明显的违背教义学和罪刑关系的痕迹而应当引以为戒,相对积极主义因包含着法律的道德价值从而更能促进公正性的实现。当前我国的司法犯罪化理论如果被不加甄别地践行,或者不进行细致化的推演,可能具有绝对积极主义色彩而走向公正的反面。因为刑法包含着规范属性和道德属性,这意味着人道精神与法定理念互为补充,意味着公正和人道成为刑事司法的目标。相对积极主义的特征是注重方法论的合刑性以及合宪性要求。     

Moving from Evidence‐Light to Evidence‐Based Practice: Randomized Control Trials in Family Law

In a resource‐constrained environment, such as the access to justice field, it is critical to develop better knowledge about effective and efficient service delivery. This article discusses the need for more rigorous evaluation and research in the field, both in order to better reach individuals with legal needs and to maximize court resources. Various evaluation methodologies will be explained, along with examples of current randomized control trial studies being conducted at the Harvard Access to Justice Lab.     

Integrating gender into index-based agricultural insurance: a focus on South Africa

Index insurance is an agricultural risk management tool that can provide a safety net for smallholder farmers experiencing climate risk. While uptake and scale-out of index insurance may be slow among smallholders, we can learn from experiences that demonstrate where crop insurance can protect smallholders’ livelihoods from climate risk. Integrating gender into climate risk management is necessary to ensure that the benefits of index insurance are experienced by both men and women. A dedicated intention to integrate gender may be required. Taking South Africa as a case study, the potential for gender-sensitive index insurance scale-out among smallholders is investigated.     

Policies of Gender Equality in Ethiopia: The Transformative Perspective

ABSTRACT

This article addresses the question of why does an African country that had more women queens and empresses throughout its history practically than any other African country have the oldest known women queens in Africa, and purports to be committed to gender equality end up undermining its own objectives. The article shows that the focus on integrationist paradigm, an approach which focuses on the participation of women in the existing development paradigm, undermined the transformative nature of gender policy because it does not conceptualize gender parity as an end by itself, but as an instrument for economic progress. Consequently, progress towards gender parity remains to be little-by-little despite the strong political commitment to gender equality. The article concludes that the transformative nature of gender policy has been endangered by emphasis on macroeconomic outcomes, macro-level conceptualization of gender issues, and the limited role of civil society in influencing policy decisions.     

Fictional power and control and the reality of abusive behaviour

In response to recent sociological studies that suggest that the seriousness of psychological, emotional and verbal abuse are not only dismissed but are also the least identified in dating relationships, this article undertakes an analysis of these underexplored, ‘less visible’, elements using Ellen Pence and Michael Paymar’s ‘Power and Control’ and ‘Equality’ wheels, it compares Stephanie Meyer’s 10th anniversary re-release of Twilight, and Life and Death: Twilight Reimagined, which tells the same story as Twilight, but with the genders reversed are compared using the ‘Power and Control’ and ‘Equality’ wheels. The author argues that Life and Death is not just a simple swap of names and pronouns, as Meyer asserts, but that the alterations of thoughts and actions of the characters reflect commonly held ideas about gender, including the perpetration of psychological, emotional and verbal abuse in intimate relationships as hallmarks of masculinity. Moreover it shows that consistent with the feminisation of vampire Edythe Cullen and mortal Beau Swan, the intimate relationship in Life and Death more closely resembles that of a non-violent and equitable relationship, which significantly lessens the abuse, and reinforces traditionally socially accepted messages about gender in intimate relationships.     

Harnessing the Power of Data to Improve Family Justice: A New Nuffield Family Justice Observatory For England and Wales

A pilot Family Justice Observatory for England and Wales is being launched in Spring 2019. Its overarching aim is to address concerns about the limited and uncertain place of empirical evidence in the family justice system. The Observatory will focus on providing intelligence about how the system is working, especially through the accelerated use of electronic population level data on family justice cases. Drawing on collaborative relationships between data providers and users, as well as policy and practice colleagues, the Observatory will improve collective understanding of the needs of children and families and how they are met by the family justice system.     

中国拥有钓鱼岛主权的证据链构造

传统上,对于钓鱼岛主权归属问题,我国学界通常以历史证据和地图证据主张作为论证的逻辑起点,缺乏结合证据规则进行的论证。在论证钓鱼岛主权归属问题时,应当对证据主张的逻辑与证据链构造逻辑予以区分,并可借鉴国际法院适用的证据分量大小认定规则,确立“历史证据/相关条约”作为论证钓鱼岛归属中国的逻辑进路,辅之以其他层级关键证据,赋予其决定性分量,以构造出拥有钓鱼岛主权层级结构分明、环环相扣的完整证据链,历史证据与《开罗宣言》《波茨坦公告》等国际条约共同确证了钓鱼岛主权回归中国,构筑证明钓鱼岛主权属中国所有的总证据链的第一子证据链;中国对钓鱼岛进行有效管辖及其相关证据构成第二子证据链;中国、日本和第三方证明钓鱼岛主权归属中国的地图等证据,构成第三子证据链。     

税法的交易定性理论

交易定性在税法分析中占有举足轻重的地位。交易定性围绕认定纳税主体、税收客体的有无、定性和量化以及由此延伸的税收管辖权等税企争议的关键环节展开。在单一合约交易,法律关系与交易定性具有同一性,税法与私法呈协调与融合状态;在复合交易、"名—形"冲突或"名—实"冲突的虚假交易,合同性质与交易定性分道扬镳,税法与私法呈现冲突与龃龉。实务中,交易定性应从行为和所得主体的"名—实"冲突或"形—实"冲突、"法律关系"和"交易定性"的协调与冲突、税收客体的"定性"与"定量"的决定关系中来把握,凸显税收活动的法律属性、交易定性与法律关系的辩证关系和税法追求实质正义的精神气质。     

Assumptions about children's best interests

The family justice system operates with a set of presumptions and assumptions about the welfare of the child which are assumed to be based on 'scientific' knowledge and which, therefore, are further assumed to carry the authority of both science and law. In practice, the result is that those working within the family justice system use powerful 'legal'notions whose provenance is often taken for granted and whose authority is unchallenged. Drawing on the different sets of assumptions operating in the family justice system and the youth justice system, this article explains, however, that law responds to messages originating in external discourses, notably science and politics, only in so far as its functions require and only in ways which 'fit'into legal communications. Viewed in this light, the presumptions are seen as working guidelines which should only be used with great care when dealing with the lives of children and young people. Whilst acknowledging that a full investigation of all children's cases would not be feasible, this article therefore argues for greater attention to the applicability and validity of prevailing presumptions.     

Rethinking responses to 'domestic violence' in Australian indigenous communities

The United Nations' response to violence against women was to adopt the Declaration on the Elimination of Violence against Women in December, 1993 that recognized indigenous women to be especially vulnerable to violence. Australia's initiatives during the 1990s included criminal justice reform, crisis service provision and community-based mediation programmes that have not proved altogether helpful for indigenous women. Given the intractable nature of violence against indigenous women, this paper holds that community-based programmes cannot work in isolation from criminal justice intervention. An approach to male-to-female violence, that views the criminal justice system not only as a means of punishment, but also as an institution for expressing human rights norms is advocated.