刍议医疗损害技术鉴定二元化现状的应因之道

《侵权责任法》颁布实施已经2年多,国家立法机关及最高人民法院迟迟没有出台关于医疗损害技术鉴定的法律解释。一些省、直辖市出台了地方性规定,但做法各不相同,理论上并没有彻底解决鉴定二元化的问题。目前部分地区医疗损害司法鉴定似乎出现一种无序状态,严重影响了医疗损害争议案件的解决,急需尽快完善顶层设计,规范鉴定机制,尽快结束鉴定的二元化局面,为医疗损害争议案件诉讼的解决提供保障。     

试论《食品安全法》中关于消费者权益保护的欠缺

消费者是食品链中最大的群体。《食品安全法》的立法之本是为了保护消费者的安全,但是《食品安全法》在消费者权益保护方面却存在很多问题,比如,食品安全概念的狭隘,某些法条难以实施,与其它法律之间互相矛盾等。本文分析了《食品安全法》关于消费者权益保护的欠缺之处,并提出了修改建议。食品药品监督管理总局的成立及食品安全监管部门职能的调整改变了以前分段管理的模式,《食品安全法》要做相应的修改。希望在《食品安全法》的修订过程中可以加强对消费者权益的保护,增加该法的实用性。     

美国精神卫生制度的发展——兼论我国新《精神卫生法》

美国精神卫生制度的形成经历了从漠视和侵犯人权到尊重和重视人权的发展过程。然而美国现有精神卫生制度领域仍然存在着诸多问题和缺陷,特别体现在医疗服务可获得性缺乏这一问题上。《中华人民共和国精神卫生法》力求在医疗服务可获得性与强制住院之间达到平衡。     

Restorative Justice and Collective Responsibility: Lessons for and from the Rwandan Genocide

Genocide struck Rwanda in 1994. Since then, national and international trials have endeavored to promote reconciliation, deterrence, peace, justice, and human rights. This article posits a disconnect between these trials and the attainment of their avowed goals. This disconnect emerges in part from the influential agendas of international lawyers who equate selective criminal prosecution with the "rule of law" and espouse criminal prosecution as the preferred and uniform response to mass atrocity. Creating a presumption in favor of criminal prosecution has dampened the need to explore whether such trials actually are suitable for the particular afflicted society. A socio-legal analysis suggests that Rwanda is precisely a place where constructed notions of what "rule of law" ought to be are supplanting the need to implement reconstructive policies that may be best for Rwanda. In particular, the populist nature of the Rwandan genocide, coupled with the vast level of victimization, suggest that a shame-based restorative approach may be more successful in promoting reconciliation, deterrence, and peace than the guilt-based retributive approach currently in vogue. This article argues that, when the law blames occurrences of genocidal evil largely on the existence of some evil people, it obscures the fact that so many people, to varying degrees of complicity, are required for this evil to result in so many deaths.     

Reconciliation: I Know It When I see It 1

States emerging from conflict increasingly seek ways in which to address the violence and human rights abuses of the past in order to move forward into a more peaceful future. The initial responses to mass atrocities were based in legal processes focused on the punishment of the person responsible for the harm. The inadequacy of such an approach resulted in the introduction of a variety of new goals in the transitional period, including the abstract notion of reconciliation which is increasingly advanced as the central goal in dealing with the legacy of the past. This article argues that the failure to examine the relationship between a discourse originally based on human rights and legal approaches and the introduction of reconciliation has only added new challenges rather than resolved existing ones and therefore must be re‐examined. The article also argues that no single approach should take prominence in addressing mass atrocities. Rather a range of options should be available to victims, in particular given the relative youth and inexperience of approaches to violent conflict.     

Prison Recruitment as a Policy Tool of Local Economic Development: A Critical Evaluation

Like the sports franchises and foreign auto plants that preceded them, state and local governments are touting prisons as the latest means of economic miracle‐making, often for small towns and communities that are economically depressed. The building of prisons is supposedly tied to the development of a just, fair, and rational criminal justice policy in a civil democratic society. Prison building has positive and negative social and political consequences for these communities. This critical essay explores some of these consequences in light of the literature on prison siting, the experiences of communities and prisoners, and relevant statistical data in the public domain. It also offers an alternative framework for evaluating prison recruitment as a strategy for local economic development.     

Towards a common framework for assessing the activity and associations of groups who sexually abuse children

Abstract

Extensive social psychological research emphasises the importance of groups in shaping individuals' thoughts and actions. Within the child sexual abuse (CSA) literature criminal organisation has been largely overlooked, with some key exceptions. This research was a novel collaboration between academia and the UK's Child Exploitation and Online Protection Centre (CEOP). Starting from the premise that the group is, in itself, a form of social situation affecting abuse, it offers the first systematic situational analysis of CSA groups. In-depth behavioural data from a small sample of convicted CSA group-offenders (n =3) were analysed qualitatively to identify factors and processes underpinning CSA groups' activities and associations: group formation, evolution, identity and resources. The results emphasise CSA groups' variability, fluidity and dynamism. The foundations of a general framework are proposed for researching and assessing CSA groups and designing effective interventions. It is hoped that this work will stimulate discussion and development in this long-neglected area of CSA, helping to build a coherent knowledge-base.     

‘Done to death by father or relatives’: Irish families and infanticide cases, 1922–1950

In February 1929 the Bishop of Ossory commented on the fact that in Ireland illegitimate infants were often ‘done to death by father or relatives’ (Irish Catholic, 16 February 1929). There were many instances where family members of unmarried women who gave birth were the sole defendants or co-defendants in infanticide cases in post-independent Ireland. Although illegitimate infants were ‘done to death’ by their fathers in a number of cases that were tried at the Central Criminal Court in Dublin between 1922 and 1950, this article will focus on cases where infants were murdered or suspected of having been murdered by relatives of the birth mother both in the Twenty-Six Counties and in Northern Ireland (Irish Catholic, 16 February 1929). For the purposes of this article I have referred to the murder of illegitimate infants as ‘infanticide’ even though there was no separate charge of infanticide in the Irish Free State until 1949. The English infanticide acts of 1922 and 1938 also applied to Northern Ireland. This article discusses the motives of the relatives of single mothers who played a part in the deaths of illegitimate infants. Unmarried motherhood was severely frowned upon in Ireland and the relatives of single pregnant women assisted their female kin in destroying the evidence of extra-marital conception in order to protect the family's honour and moral reputation in the wider community. The records of infanticide trials provide a great deal of insight into the ways in which mainly working-class families dealt with the strain of pregnancy outside wedlock in Ireland between 1922 and 1950.     

Fisheries management in Jamaica,international perspectives

Abstract

This paper examines Jamaica's efforts to implement of the conservation and management provisions of the United Nations Convention on the Law of the Sea (UNCLOS), bearing in mind that prior to 1982 there was an existing legal framework that sought to address issues relating to fisheries management. More specifically, the paper looks at the issues related to the conservation and management of straddling and highly migratory fish stocks under UNCLOS and subsequent agreements negotiated under the auspices of UNCLOS. It also addresses the problems Jamaica faces with the conservation and management of Queen Conch (Strombus Gigas), in particular, the UNCLOS provisions regarding access to such resource, taking into account the limitations to such access as regulated by the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES).     

A Review of “Setting the Standard: Certification,Governance, and the Forest Stewardship Council”

Abstract

As the United Nations Convention on the Law of the Sea (UNCLOS) establishes itself as one of the premier regimes in international law, member states are increasingly availing themselves of the significant dispute settlement provisions found in Part XV. The International Tribunal for the Law of the Sea (ITLOS) is beginning to take its place in the pantheon of major international tribunals. Although its jurisprudence thus far has largely consisted of applications for prompt release of vessels, these cases have arisen from disagreements over fishery practices and the enforcement of fishery laws by coastal states. The ITLOS is developing into a transparent, consistent and speedy forum to adjudicate marine disputes arising from UNCLOS. While the overall scope and reach of Part XV may be uncertain at the present time, especially vis‐à‐vis other dispute settlement institutions, the early activity under Part XV is promising. Those concerned with marine wildlife issues should be encouraged by the potential of Part XV, the ITLOS in particular, to serve as an effective regime in the realm of marine wildlife dispute settlement.