离婚救济制度之实证研究

在北京、厦门、哈尔滨三地部分法院的调查显示 ,离婚救济制度目前在司法实践中未能得到有效适用。特别是离婚经济补偿制度和离婚损害赔偿制度适用者寥寥无几。而离婚经济帮助制度也存在着适用条件苛刻 ,受助者范围小 ,住房帮助的规定难以落到实处 ,金钱帮助数额偏低 ,经济帮助实际不到位的问题。针对调查中所显示的制度缺位与不周延问题 ,需要从制度层面进行反思 ,考虑制度性重构。     

离婚诉讼之反诉初探

反诉制度在我国诉讼理论及实践中尚不完善,而对于其一分支离婚诉讼的反诉则更属空白地带,本文从诉权、诉 讼标的、反诉的理论构成及司法实务方面阐述了设立离婚诉讼的必要,并在此基础上提出了一些完善设想。     

《治安处罚法》第九条的理论与运用

《治安处罚法》第九条涉及行政责任与民事责任的竞合理论与行政调解理论。除此以外,本文还谈了该条在适用中应注意的一些问题。     

论离婚损害赔偿制度的法律适用

离婚损害赔偿是配偶一方违法侵害他方的合法权益 ,导致婚姻关系破裂 ,离婚时对无过错配偶方所受的损害 ,过错配偶应承担民事责任的法律制度。离婚损害赔偿民事责任须具备一定的构成要件。离婚损害赔偿的权利主体应是无过错的配偶方 ,义务主体应是实施了法定违法行为的过错配偶方 ,不宜将离婚当事人以外的第三人也视为义务主体。离婚损害赔偿既包括物质损害赔偿 ,也包括精神损害赔偿 ,而精神损害赔偿意在对无过错受害方给予精神抚慰。     

Risks and Realities of Working with Alienated Children

Involvement in custody cases that include accusations of parental alienation—whether as an evaluator, expert witness, lawyer, judge, therapist, provider of a specialized intervention, or researcher—incurs both professional and personal risks. Some risks relate to false negative or false positive identifications of parental alienation that can lead to regulatory agency complaints and public condemnation by the parent who feels wronged by the case outcome. Other risks stem from providing services in an emerging area of practice and working with children who overtly oppose repairing the relationship with their rejected parent. These risks include: unfounded accusations of mistreating children; negatively biased commentary and sensationalist attacks in the media and in social media, professional conferences and journals, and in courtroom testimony; harassment, vilification, and invasion of privacy; threats of violence and public humiliation; shunning and rumor spreading by colleagues; and complaints to regulatory agencies. This article examines circumstances, beliefs, and dynamics that give rise to these risks, suggests precautions to reduce the risk of false accusations against professionals, and offers recommendations for dealing with regulatory agencies. Criticisms that a court or service provider has mistreated a child merit careful scrutiny in the context of the case evidence and empirical data. While some interventions for alienated children raise legitimate concerns, others have been maligned by anecdotal complaints that studies show do not represent the experience of most participants.     

Responding to Severe Parent–Child Rejection Cases Without a Parentectomy: A Blended Sequential Intervention Model and the Role of the Courts

There have been significant developments over the past two decades that have expanded our understanding of the dynamics of parent–child contact problems post‐separation, which have resulted in some changes in judicial processes to respond to these cases. One significant advancement is a more sophisticated differentiation of the nature and severity of contact problems, which better assists legal and mental health professionals to provide more suitable legal and clinical interventions. However, the issue of innovative court processes has received limited attention. The authors describe a subgroup of families within the “severe” category, for whom an expanded intervention model, referred to as a Blended Sequential Intervention is proposed. This approach involves a reversal of care with court mandated therapeutic support for the rejected parent and child, but also involves the favored parent in the therapeutic plan from the outset, and is intended to avoid a permanent “parentectomy” of the child from either parent. The authors discuss how the courts should respond to these cases, and posit that until all therapeutic treatments are exhausted, interim orders should be preferred to final determinations, and judges should maintain oversight. The authors discuss the critical role of judicial leadership in working with lawyers and mental health professionals to manage and address the issues in these high conflict cases.     

Parenting Coordination In Cases Involving Intimate Partner Violence

Parenting Coordination is a “hybrid legal‐mental health role that combines assessment, education, case management, conflict management, dispute resolution and, often times, decision‐making functions (AFCC, 2019, https://www.afccnet.org/Portals/0/PublicDocuments/Guidelines%20for%20PC%20with%20Appendex.pdf?ver=2020-01-30-190220-990 ). This article addresses issues that arise when the case has allegations or findings of intimate partner violence (IPV). Considerations of the type of IPV, the severity, timing, perpetrator and effects on coparenting are discussed in the context of the parenting coordinator's role. Through screening and assessment, we differentiate the kinds of cases with the presence of IPV where a PC may be effective as opposed to other IPV cases that may not predict success for retaining a PC.     

Parenting Coordination and Confidentiality: A (Not‐so) Delicate Balance

This article describes the current state and range of information protection in the growing number of states and Canadian provinces that employ parenting coordination in an effort to reduce repeat custody litigation. The predominant approach—in which what is revealed during the process is not confidential—is analyzed in terms of its compatibility with the parenting coordinator's multiple tasks of educating parents, seeking to facilitate agreements, and, if necessary, providing the court with a report, a recommended decision, or an arbitrated result. Using a case scenario with multiple parts, the article then examines such confidentiality schemes in practice by providing an action‐oriented series of questions that illustrate how much of this topic must be resolved through a parenting coordinator's exercise of discretion in the absence of rule clarity. The article then raises a number of policy questions about whether current parenting coordination confidentiality norms strike the optimal or even the correct balance on information protection and concludes by identifying several policy options that might address these questions.     

劳动争议调解制度的重构

和谐劳动关系是和谐社会的重要组成部分,劳动争议调解制度是和谐劳动关系的重要组成部分,也是社会主义和谐社会的必然要求。基于时代的发展和当前我国劳动争议处理制度的现状,重构劳动争议调解制度已成为必然。     

中国传统社会基层治理的法律机制与经验

基层社会治理对于整体社会治理起着重要的基础和支撑作用.在中国传统社会的基层治理中,形成了一套圆融自洽、顺利运行的法律机制,其中蕴含了我国在基层社会治理方面的宝贵经验.传统儒家法与道德相混成,一直将道德教化作为重要的社会治理手段,德治与法治相结合;而基层的自治制度,不论在立法还是司法上,都为国家法律体系的有机组成部分.中...