父母侵害胎儿权益问题研究

胎儿的民事权益应当得到保护，侵害胎儿权益也应当承担相应的民事责任。但父母能否成为侵害胎儿权益的主体，以及父母实施的何种行为可以构成侵权行为，在法理上及实践中均存在着较大争议。为了实现胎儿权益保护和家庭伦理保护之间的平衡，应当从是否婚生，是否存在故意，以及是否使用暴力等几个方面来综合考虑。此外，父母对损害发生与有过失应考虑适用过失相抵，父母的允诺应能构成阻却违法的事由。     

论信赖原则及其在交通肇事罪认定中的适用

信赖原则具有平衡社会公共安全保护与交通建设事业发展、限制过失犯罪成立范围的功能,其适用条件有严格的限制。国外关于信赖原则的立法、判例对我国在刑法理论、立法领域引入该原则具有非常重要的借鉴意义。我国目前的交通设施环境、法治观念等已经基本具备了适用信赖原则的条件。     

论未成年人受侵害的过失相抵

与加害人的过失不同，受害人的过失并非违反不得侵害他人权益的义务，而是违反了对自己的保护义务，此种义务在法律上是一种不真正义务。对于受害人的过失的判断，应以受害人尽到与处理自己事务一样的注意义务而非善良管理人的注意义务为标准。为保持现行立法与司法的稳妥，可以规定：10周岁以上的未成年人具有过失相抵能力，10周岁以下的未成年人不具有过失相抵能力。在未成年人遭受他人侵害，其监护人未尽监护职责导致损害的发生或扩大的情况下，若监护人违反善良管理人的注意义务，未成年的受害人应该承担监护人的过失，在斟酌损害赔偿数额时，实行过失相抵。     

缔约过失责任赔偿范围探析

我国《合同法》规定了缔约过失责任,但是对其损失的赔偿范围,包括如何确定机会损失等问题,并没有规定.为了更明确地界定缔约过失损失的范围,对缔约过失责任的定义、性质以及确定损失范围的原则等同题进行了探讨,并且通过一个典型的例子具体分析了机会损失如何计算较为合理.     

BUREAUCRATS AS PURCHASERS OF HEALTH SERVICES: LIMITATIONS OF THE PUBLIC SECTOR FOR CONTRACTING

Contracting out of health services increasingly involves a new role for governments as purchasers of services. To date, emphasis has been on contractual outcomes and the contracting process, which may benefit from improvements in developing countries, has been understudied. This article uses evidence from wide scale NGO contracting in Pakistan and examines the performance of government purchasers in managing the contracting process; draws comparisons with NGO managed contracting; and identifies purchaser skills needed for contracting NGOs. We found that the contracting process is complex and government purchasers struggled to manage the contracting process despite the provision of well‐designed contracts and guidelines. Weaknesses were seen in three areas: (i) poor capacity for managing tendering; (ii) weak public sector governance resulting in slow processes, low interest and rent seeking pressures; and (iii) mistrust between government and the NGO sector. In comparison parallel contracting ventures managed by large NGOs generally resulted in faster implementation, closer contractual relationships, drew wider participation of NGOs and often provided technical support. Our findings do not dilute the importance of government in contracting but front the case for an independent purchasing agency, for example an experienced NGO, to manage public sector contracts for community based services with the government role instead being one of larger oversight. Copyright © 2011 John Wiley & Sons, Ltd.     

Leveraging liminality: how San Diego taxi drivers used their precarious status to win reform

ABSTRACT

Using a case study in San Diego, California, we explore the complexities of precarious employment for taxi drivers. We seek to answer the following question: how do the ambiguities of taxi drivers’ status as independent contractors shape drivers’ work conditions and opportunities for resistance? Our study is based on 331 surveys, 20 in-depth interviews, participant observation, and policy analysis over two years. While drivers were objectively disempowered by the independent contracting designation, lacking both the protections granted employees and the prerogatives of ownership, they were empowered by the alliances this duality facilitated. Drivers used their marginal identities as workers and as entrepreneurs to their advantage in their campaign for reform. This case presents an alternative narrative to previous research, which generally highlights how independent contractors either accept their status in exchange for flexibility or resist by claiming misclassification. The immigrant taxi drivers in our case study actively resisted, not by pursuing recognition as employees, but rather by successfully seeking the full rights of business owners.     

Lessons Learned from Public and Private Contract Managers for Effective Local Government Contracting Out: The Case of New Jersey

To date, very few studies have explored practical strategies for exercising effective financial management of local government contracts through two main stakeholders’ perspectives of the contracting system at the same time. Employing a series of semi-structured interviews with public officials and private contractors in New Jersey, this study attempts to fill this gap in the scholarship. The finding of this study suggests that government agencies should pay greater attention to competitive bids without favoritism, contract specificity, a statewide performance database, sufficient staffing with well-trained personnel, strong leadership, team-based structures, two-way communication, and evaluation based on both qualitative and quantitative values.     

Building capacity in indigenous governance: Comparing the Australian and American experiences

This paper compares key aspects of governance structures for Indigenous populations in the United States and Australia. The paper focuses on policy coordination and administration, in particular the nodes of decision-making in the two countries in relation to government contracting and accountability. The U.S. approach to funding Indigenous organizations stems from the 1975 Indian Self-Determination and Education Act and its subsequent expansions. Through the development of contracting into permanent compacting via block grants, this approach builds established nodes of Indigenous government and facilitates whole-of-government coherence at the level of the American Indian tribe. The U.S. approach seems correlated with better performance and may lighten bureaucratic loads over the long term. The Australian model, on the other hand, seeks to create whole-of-government coherence through top-down financial accountability in a way that hampers the development of Indigenous political capacity. The paper traces the development of these practices through time and illustrates how they contribute to the fragmentation rather than growth of Indigenous political capacities. It suggests ways the Australian model could be improved even in the absence of fundamental reform by drawing on the contracting-to-compacting framework of longstanding U.S. practices.     

Dynamic-opportunistic behaviour in local government contracting-out decisions during the electoral cycle

A major question for public managers is whether municipal services should be rendered in-house or contracted out. In view of the negative perceptions often aroused by contracting out, this political decision might be framed within a theoretical model that we term ‘dynamic-opportunistic behaviour’. According to this model, the probability of municipal services being contracted out is greater in the years immediately following elections; moreover, during this period the decision is taken more quickly. In this theoretical model, not all factors (budgetary, economic, political, service characteristics and socio-economic) have an equal impact on the contracting-out decision during each year of the electoral cycle. The model was applied to a sample of 2,274 Spanish municipalities, with respect to a broad time horizon (2002–2014), and the results obtained confirm our hypotheses regarding dynamic-opportunistic behaviour in the contracting out of local public services.     

The Effect of Formal and Informal Contracting Mechanisms on Implementation Performance in the U.S. Federalist System

The relationship between contract management capacity and implementation success in local government contracting is well established. However, less is known about how specific contract mechanisms are linked to this success. This study uses implementation of the Energy Efficiency and Conservation Block Grant Program to examine the use of formal and informal contract management techniques in the implementation of energy projects. The use of formal contract mechanisms, such as full and open competitive bidding, contact rescission and outcome-based performance measures, exhibits a statistically significant effect on implementation performance. The findings advance contracting theory and have practical implications for local government contracting and implementation success in fiscal federalism.