普通法权限中的宪法解释

普通法发源于英国,但法学体系中的宪法解释学却是在美国起源并在普通法体系中发展到最高水平的。美国的宪法司法审查实践引发了三个紧密联系的问题,即法官宣告由民主选举产生的立法机构(包括国会和州立法机构)制定的法律无效是否合法,法官如何解释宪法,法官如何发挥能动性从而在审查立法行为时能做到多大程度的自我控制。通过分析可知,司法审查的合法性正在得到国际社会的广泛认可,并且目前也存在着许多解释宪法的理论、方法和方式,而对于司法能动性适合于何种情况却仍然是美国宪法辩论的中心问题。     

Measuring Volunteerability and the Capacity to Volunteer among Non‐volunteers: Implications for Social Policy

As volunteering and its benefits gain global recognition, social policymakers can sustain and increase volunteering through social policy, legislation and other types of involvement. A key performance practice is to measure the rate of volunteering based on the percentage of the population that volunteer or the number of hours donated. The focus of this article, however, is on the capacity to volunteer by non‐volunteers as well as by volunteers. The concept and theory of volunteerability (an individual's ability to overcome related obstacles and volunteer, based on his or her willingness, capability and availability) offers a richer understanding of how people can be assisted to overcome barriers to maximize their volunteer potential and thus increase volunteering. The article details the definitions and benefits of volunteering and covers examples of related social policy, as well as explaining the concept of volunteerability and how it can be measured using existing and new scales. Based on a mixed methods study in Australia, the article offers specific measures to examine the concept of volunteerability and reveals important differences between volunteers and non‐volunteers. The article also details major barriers to volunteering and how social policies can be developed to overcome them.     

The Right of Young People to be Heard

In 1993 the New Zealand Government ratified the United Nations Convention on the Rights of the Child. It placed a reservation against Article 32 maintaining that legislation of a minimum age for entry into employment would not be in the best interests of children. The Government is reconsidering this reservation. Article 12 of the Convention provides for states to involve children in legislation that affects them. In a survey funded by the Department of Labour to find out more about young workers (Gasson, Linsell, Gasson, & Mundy‐McPherson, 2003) we asked school students whether they thought the Government should legislate a minimum age for employment. Most did not. I argue that the Government should seriously consider children's views even when they conflict with the views of agencies whose intent is to promote the best interests of children.     

The status of women in rural India: a village study

This paper examines the status of rural Indian women and how their status has been affected by progressive legislation designed to remove previous inequalities. A socio-demographic survey of women and adolescent girls was conducted in a Maharashtrian village of 2100 people in 1975-76. The village economy was based on subsistence agriculture with 94% of females and 84% of males engaged in farming. Data were collected by means of participant observation and questionnaire interviews. Overall levels of education were low, with only 5% of females and 15% of males having any high school education. Over 50% of females had received no education, 28% of males. Inequalities between males and females persisted throughout all age groups but were less obvious at younger ages. 97% of women felt that boys should attend school beyond the primary level, 75% said that girls should. Many adolescent girls said they would like to continue their education but admitted that they would soon marry and advanced education was unnecessary. 62% of women favored modern medicine but 57% still felt that smallpox was a punishment from the gods; fewer educated women than illiterate women answered this way. Average age of marriage was 14.1 years; 69% of the women felt that girls should be married by age 16, but 70% believed that boys should not marry until age 18 so that they can complete their studies. 62% of women who had discussed family size with their husbands also approved of eating together and 55% felt that joint discussion was preferable. Only 25% felt that large families meant greater happiness and on the average 3.4 children (2 sons, 1.4 daughters) were preferred; over 75% said that they would exceed their ideal family size if they had borne only daughters. The local family planning program was approved by 90% of the women and use has increased from 13-43% from 1966-76. Low caste was related to low levels of education for women, but there is little difference in the number of children ever born; the disparity is mainly in regard to living children with mortality highest among lower castes. Age differences existed such as: 52% of the youngest group can read and write compared to only 14% of older women, age at marriage is rising, and older women had more communication with their husbands, but also had larger families. It was found in this study that: 1) attitudes were more modern than behavior, and 2) modern practices most practical to apply to their daily lives were more easily accepted. What is needed is a broad-based educational program to demonstrate current failures to observe the legislation favoring greater equality for women. Rural schools should help to transmit modern concepts by way of organizing school trips to outside areas. For these women, modern ideas must be proven relevant and acceptable within the village milieu. Also included is a list of social reforms and legislation affecting women's status in India from 1795-present.     

当代中国物权立法的观念误区及其克服

百年前中国物权立法道路的选择奠定了当代中国物权立法的模式选择和价值取向,也导致了中国物权立法进程的艰难曲折。中国当代的物权立法必须走出功能价值定位偏失、忽略本土法律传统等误区,在中国本土法律资源的基础上引入现代性的价值目标,对物权理念进行更新,将法律的文化意义和形式品质作为物权立法的新理念,实现中国物权立法现代性的转变。     

Taiwanese Housing Policy Shifting the Focus of Housing Policy under a Democratic Regime

In Taiwan, home ownership has been seen as a privilege of military and civil officers since the R.O.C. government moved to Taiwan in 1949. Taiwan has become a more democratic regime since martial law was repealed in 1987 and presidential election by popular votes was initiated in 1996. Using documentary data, this paper aims to relate the transition in housing policy to Taiwan's political transition from authoritarianism to democracy. We found that after the lifting of martial law, a growing number of social movements were triggered in response to political democratization. Since then, concerns and debates have started on how to revise the housing legislation to promote the welfare and social inclusion of vulnerable groups. A new housing policy that was influenced by the advocacy efforts of an action group was developed in May 2005 to meet social needs and achieve social equity.     

Drink-driving and Adolescent Lifestyles: Re-Thinking Policy

The difficulty of evaluating the effectiveness of programmes to tackle road safety is well-known. Understandably most funds are spent on programmes (like manipulation of the physical environment and law enforcement) which are directed towards all road users rather than targeted at specific groups. In this paper we are concerned with the need to develop strategies for tackling the problem of drink-driving among a highly vulnerable group, namely young people. After examining the problem of drink-driving amongadolescents, we review some ofthe explanations for this phenomenon and consider their strengths and weaknesses. We take issue with the argument that only crude measures involving reductions in exposure to risk have any hope ofsuccess with young drivers. Our central argument is based on two distinct areas of research. The first has specifically identified adolescents asa vulnerable group. Thesecond hasdemonstrated the distinctive character of adolescent lifestyles. The paper attempts to demonstrate that drink-driving forms an integral part of the lifestyles of many adolescents. Educational and ‘lifestyle’ interventions should therefore focus specifically on adolescents and consider the diversity of lifestyles and social groups within this broad demographic category. We also draw attention to economic interests, social pressures and the politics ofroad safety legislation that imply constraints on policy change.     

Guardianship of the Person in Scotland

Correspondence to Bill Whyte, Lecturer in Social Work, Department of Social Policy and Social Work, Adam Ferguson Building, University of Edinburgh, George Square, Edinburgh EH8 9LL. Summary There has been a renewed interest in recent years on the purposeof Guardianship but only limited empirical data on how it isbeing used under the current Mental Health legislation. Thispaper attempts to address both issues. The paper presents someof the findings of a Scottish study which examines the implicationsof this legislation and covers a range of issues including usesof Guardianship; a profile on the Mental Health Officers (ApprovedSocial Workers) involved and their role in assessment; who becamethe guardian and how they exercised their role; and broaderlegal issues. Unlike a recent paper (Evans, 1989) the authorsbelieve the legislative framework is inadequate to promote initiativeand good practice in this field and that there is a need fora new debate on the purposes of Guardianship with particularreference to the powers needed to care for and protect a rangeof adults with differing needs who might be considered ‘atrisk’ in the community.     

Domestic Violence: Comparative Analysis of German and U.K. Research Findings*

Objective. This article examines the notion of the family and within its postmodern definition the research undertaken in the field of domestic violence and its consequences for criminal justice agencies in the United Kingdom and Germany. Has the notion of the family changed in Western culture? How has legislation changed regarding domestic violence in line with criminologists' and social scientists' hypotheses, reflections, and recommendations? How are victims and witnesses protected from perpetrators? Methods. The authors discuss how legislation in both countries has changed to meet the needs of victims and witnesses of domestic violence. The article looks at different forms of law enforcement in domestic violence and how the agencies assess future dangerousness. Results. Research analyses show that domestic violence is now taken seriously in both countries' legislation. But what is the impact on policing domestic violence in both countries? It is argued that U.K. law enforcement agencies are more advanced that the German police in dealing with domestic violence in a practical and pragmatic fashion. Conclusions. The authors explore the shift in cultural beliefs affecting male dominance in the family setting, how public attitudes to domestic violence have changed, and how law enforcement agencies are now dealing with violence within the family in both countries.     

Children’s Participation in Child Protection Practice in Ghana: Practitioners’ Recommendations for Practice

Abstract

The United Nations Convention on the Rights of the Child (UNCRC) includes provisions to ensure that children and young people participate in decisions affecting their lives. Ghana ratified the convention in 1990 making a commitment to review its child protection policies and legislation in compliance with provisions in the UNCRC. Yet, national policies and legislation do not include practical guidelines to promote children’s participation in the child protection process. Thus, this qualitative study presents findings from in-depth interviews with 15 child protection practitioners on their views about some practical guidelines to promote children’s participation in child protection. Data from the interviews were subjected to constructivist grounded theory analysis. The study findings revealed the age of the child, separate room for children, creating a friendly environment and education as some important factors for practitioners to consider in promoting participatory practices for children. Child protection policies and legislation in Ghana should include these suggestions to ensure that children’s views are heard in the child protection process. To realize the overarching goal of achieving active child participation in child protection, further research may focus on the views of parents and children on how to develop culturally relevant strategies to promote child participation.     

Dutch Women are Liberated, Migrant Women are a Problem: The Evolution of Policy Frames on Gender and Migration in the Netherlands, 1995–2005

Over the past decade, there has been a major shift in Dutch gender equality policy to an almost exclusive focus on migrant women. Simultaneously, the focus of ‘minority policies’ has shifted more and more towards gender relations. The appearance of migrant women at the top of the political agenda is remarkable. In this article we examine how this construction of migrant women as a political problem has come about, and consider its implications. As we argue, the dominant policy frames of emancipation and individual responsibility are reinforcing a dichotomy between the autochthonous ‘us’ and the allochthonous ‘them’. As the problem is increasingly defined as a cultural one, it is implicitly stated that there is no problem with the dominant culture and society. Barriers for participation are exclusively located in the migrant (Muslim) culture. In this view, Muslim migrants should first change their culture before they can fully integrate in Dutch society.     

Care of Older Adults in Iceland: Policy Objectives and Reality

ABSTRACT

We examine the implementation of the Icelandic government's policy on formal care of older adults in Iceland. The policy as expressed in legislation and other policy documents is to ensure access of older adults to the appropriate level of health and social care services. How does the actual level of formal care compare with the policy objectives? Does there exist an implementation deficit, and if so, why? We address the question by analyzing Icelandic and international statistical databases. The findings reveal a gap between the aims of the current policy and its delivery. As elsewhere in the Nordic region, the policy allows for the emphasis to be on home-care services in which the individual's needs are assessed comprehensively. Administrative problems and insufficient resources to better understand and explain the problem are identified. Current steps to address the problem include the necessity of a comprehensive evaluation of the level and quality of elder-care services in Iceland, which would help compensate for the shortcomings of the existing public statistical databases. In future research, it is necessary to analyze how services can be coordinated while increasing responsiveness to the voices of older adults and their relatives on the care of older people.     

论我国物权变动立法中的二元化模式

我国物权变动立法应当采用二元化的模式。一元化的形式主义立法模式过分强调交易安全,忽略了交易效率;过分强调公示,从而抹杀了当事人间不必公示的交换利益。意思主义的价值在于有利于促成财产的流转,实现交易便捷和高效率。二元化模式是我国物权立法对意思主义和形式主义进行平行继受的结果,它有利于发挥意思主义的优势以克服形式主义的局限性。     

Shaping the Future of Mental Health Policy and Legislation in Northern Ireland: The Impact of Service User and Professional Social Work Discourses

This paper explores the complex interrelationship between serviceuser and professional social work discourses and provides acritical commentary on their respective contributions to therecent review of mental health policy and legislation in NorthernIreland. The analysis indicates that dominant trends in mentalhealth care, as mediated through service structures and institutionalidentities, have tended to prioritize the more coercive aspectsof the social work role and reinforce existing power inequalitieswith service users. It is argued that such developments underlinethe need for a ‘re-focusing’ debate in mental healthsocial work to consider how a more appropriate balance can beachieved between its participatory/empowering and regulatory/coercivefunctions. Whilst highlighting both congruence and dissonancebetween respective discourses, the paper concludes that opportunitiesexist within the current change process for service users andsocial workers to build closer alliances in working togetherto reconstruct practice, safeguard human rights and developinnovative alternatives to a traditional bio-medical model oftreatment.     

加入WTO与我国企业立法的改造

加入WTO要求我国法律法规与WTO规则衔接。我国企业立法是我国法律体系中与WTO规则存在较大差距的一个部分。WTO要求我国内外资企业立法一体化 ,内资企业立法平等化 ,企业立法模式统一化、内容系统化。改造我国企业立法要确立非法人企业的民事主体资格 ;要突破传统公司理论的局限 ,允许无限公司和一人公司存在 ,使公司组织形式多样化 ;要统一企业立法模式 ,即企业皆以不同的公司形式出现 ,制定统一的公司法 ,对其进行规范调整。     

改革开放以来我国反腐败斗争历史轨迹探析

改革开放以来,我国通过＂运动式＂反腐、法制反腐、惩治和预防并举三个历史阶段,使反腐败斗争取得了显著成就,留下了一条特色鲜明的反腐败斗争轨迹。研究探析既往反腐败斗争的经验教训,有助于我国反腐败斗争在未来新的阶段健康发展。     

信息能力与压力型立法(英文)

基于媒体话语的压力型立法是立法者信息能力不足的产物。如果立法者的信息能力不能有效应对现代法律规制活动的知识挑战,那么将无法抵御媒体话语过度渗透,导致立法与媒体之间的关联过于紧密,形成一旦媒体热议、立法就积极跟进的压力型立法现象。法律制度是具有恒常性的规则,而压力型立法往往失却应有的冷静、客观、慎重与全面,展现出背离理性立法的内在机理的决策特点,引发一系列既不公平、也无效率的再分配效应。压力型立法凸显了信息在公共政策选择和制度设计中的重要性,应当实施立法绩效评估制度,以此为立法者重塑信息能力提供充分的激励,确保立法的科学性与合理性。     

Chinese Perceptions of the Scandinavian Social Policy Model

This paper highlights the stereotypical images characteristic of Chinese social research on the Scandinavian model. How do Chinese commentators explain the development of the Scandinavian social policy model and how do they assess it? Is it deemed morally sound and sustainable? Reasons for the contrasts of interpretation between Chinese and Scandinavian authors are categorized along two dimensions. There are “missing elements”, typically the notions of social solidarity and social citizenship, which tend to be ignored by Chinese writers though underscored by Scandinavian writers. There are also “added elements”, generated from Chinese contexts, which affect Chinese interpretations of the Scandinavian model. The study argues that since each welfare regime type is possessed of its own normative codes, supported by its own particular social order, it is necessary to decode such elements—especially cultural notions of welfare—to appreciate the points of view being expressed.     

慈善概念的移植何以未完成:一个政策过程的分析

寻求法律移植与习俗的有机统一无疑是中国法律现代化最为重要的问题。由于缺乏微观政策过程的分析,对这一问题的探讨大多停留在宏观层面。本文从法律现代化和法律多元主义的理论视角出发,以《慈善法》中“慈善”概念的形成为例,探讨了法律移植与习俗如何通过立法体制影响法律的形成。研究发现,习俗通过回应性立法的制度安排以及立法者的双重身份被纳入到决策中。法律移植的慈善概念则通过法律专家与立法者的深度互动产生作用。然而,立法过程中提案与审议的分离以及政治官僚制的决策模式使得形式理性法律的建构面临双重消解。因此,促进立法体制的优化才能实现立法中形式理性与价值理性的有效融合。     

Equipping child protection practitioners to intervene to protect children from cumulative harm: legislation and policy in Victoria,Australia

Many children are repeatedly reported to statutory child protection services, but do not receive the protection they need. Many such children are suffering chronic maltreatment, which is likely to result in cumulative harm. Chronic maltreatment encompasses emotional abuse and chronic neglect. As a result, children can experience a range of cognitive, emotional, and behavioural problems that are more serious than those associated with other abuse types. This paper focuses on the Victorian statutory child protection system, and considers why cumulative harm is not receiving the attention the legislation intends. Under the Victorian legislation cumulative harm must be proven on grounds of emotional abuse and/or neglect. However, it is difficult for child protection practitioners to place before the court the necessary evidence to establish these grounds. The paper concludes that the legal definitions of emotional abuse and neglect should not require evidence of a link between the abusive actions of the parent and the poor outcomes for the child. The evidentiary focus should be on the actions of the parent. Furthermore, legislation should focus on abusive parental behaviours that are likely to result in cumulative harm, which are more concrete and measureable than emotional abuse and neglect, such as intimate partner violence and parental illicit drug use.