中国公益诉讼中的案例指导问题

[主持人语]案例指导是对法院审判工作经验的成功总结,是上级法院指导下级法院审判工作的一种重要手段。从新中国成立到90年代,我国案例指导工作经过了曲折的变化过程,既有成绩和经验,也有教训与不足。进入新的世纪,最高人民法院《五年改革纲要》和《二五改革纲要》为我国案例指导制度的发展提出了制度设想,人民法院案例指导工作进入制度建设的快速发展期。目前,互联网和信息技术迅速发展,案例的整理和编辑方式发生了急剧的变化。伴随着我国经济的成长和社会的进步,案例指导的模式也需要及时调整。因此,对于我国案例指导制度的构建积极进行探索和分析,具有重要的现实意义和理论价值。参加此次案例指导专题讨论的研究者,既有长期从事司法实践工作的法官,也有年轻的法学理论工作者,他们从不同角度对于案例指导问题进行了探讨。有的作者研究了公益诉讼中的案例指导,有的作者探讨了我国涉外民事案件法律适用的案例指导问题,还有的作者分析了民法法系中案例的地位和效力,对于案例在其他民法法系国家和地区的法律地位及法律效力进行了考察与比较研究。这些文章的观点或许还需要修改和完善,但理论探索本身即是我国案例指导制度构建的重要组成部分,我们期待着更多的学者和司法实践工作者参与其中。     

北方农民专业合作组织发展的社会学考察

农民专业合作组织正在成为促进农业和农村经济发展、促进农民增收的新的组织形式。但农民专业合作组织发展的内、外部制度环境不健全,从总体上说还处在发展的初级阶段,存在着功能单一、组织形式驳杂、法律地位不明确等突出问题．组织的创新与发展尚面临诸多的障碍,变革与创新已成为组织实现进一步发展的现实选择。     

离婚案件网络虚拟财产的分割——以淘宝网店为例

我国《民法总则》明确了网络虚拟财产受法律保护,这是财产保护的一大进步,但是理论和实践中,网络虚拟财产却存在着性质和权属难以确定、分割和继承规则不明确等一系列问题。对涉及淘宝网店财产分割的审判案例进行数据分析,发现审判实践中存在着财产分割没有法律依据、价值难确定、归属不公平的困境。针对这些困境,在对夫妻网络虚拟财产进行分割时要注意保护虚拟财产的特殊性,提前明确共同财产范围,组织多机构联合评估价值,保护人身利益。     

Divorce Chinese Style

This study investigated divorce during China's social and economic transformation period from 1970 to 2012. Specifically, the study examined the trend development of divorce and demonstrated how marriage formation type and individual socioeconomic characteristics were associated with the likelihood of divorce across time. Event‐history analysis was applied to longitudinal data from the China Family Panel Studies (2010–2012 waves). The results showed a threefold increase in divorce from the pre‐1990s to the 1990s. Surprisingly, the trend shifted to a plateau toward the 2000s. When cohabitation was in its rapidly diffusing stage in the 1990s, individuals who cohabited prior to marriage had a substantially higher likelihood of divorce. As cohabitation became increasingly common in the 2000s, its effect on divorce weakened. The role of socioeconomic characteristics in divorce also varied across time. This study enriches the knowledge of family dynamics in contemporary Chinese society.     

Exploring the Relationship between Secularity and Marital Behavior

The higher religiosity of women is a longstanding feature of the religious landscape in the Western World. With the recent vibrancy of secular movements, the greater religiosity of women is reflected in a gender imbalance within the secular groups. For instance, more than three quarters of American atheists are male. Given the effects of both religiosity and secularity on worldview and lifestyle, this gender imbalance is likely consequential for marital behavior and outcomes. Using the latest cycle of the Canadian General Social Survey focused on family, this paper examines how marital behavior of individuals without any tie with religion or spirituality compares with others. Secular males are found appreciably more likely to experience marital dissolution, whereas their female counterparts are shown no different from others. This result lends support to the theories that posit religiosity as a complementary marital trait, requiring the mating of the like. The analysis also indicates that union formation behavior of secular females manifests a larger shift away from the traditional conceptions of marriage compared with secular males. Various explanations are explored.     

Divorce and parity progression following the death of a child: A register-based study from Finland

Most studies that have examined whether a child’s death influences parental relationship stability have used small-scale data sets and their results are inconclusive. A likely reason is that child loss affects not only the risk of parental separation, but also the risk of having another child. Hence parity progression and separation must be treated as two competing events in relation to child loss. The analysis in this paper used Finnish register data from 1971 to 2003, covering over 100,000 married couples whose durations of both first marriage and parenthood could be observed. We ran parity-specific Cox regressions in which process time started from the birth of each additional child. All marriages included women of childbearing age, none of whom had experienced any child death on entering the analysis. We find that child loss only modestly influences the divorce risk, whereas its effect on the risk of parity progression is considerable.     

Premarital Cohabitation and Marital Dissolution: An Examination of Recent Marriages

An ongoing question remains for family researchers: Why does a positive association between cohabitation and marital dissolution exist when one of the primary reasons to cohabit is to test relationship compatibility? Drawing on recently collected data from the 2006–2008 National Survey of Family Growth, the authors examined whether premarital cohabitation experiences were associated with marital instability among a recent contemporary (married since 1996) marriage cohort of men (N = 1,483) and women (N = 2,003). They found that a dichotomous indicator of premarital cohabitation was in fact not associated with marital instability among women and men. Furthermore, among cohabitors, marital commitment prior to cohabitation (engagement or definite plans for marriage) was tied to lower hazards of marital instability among women, but not men. This research contributes to our understanding of cohabitation, marital instability, and broader family change.     

Jackpot? Gender Differences in the Effects of Lottery Wins on Separation

In this study, information on small to modest lottery wins from the British Household Panel Survey (N = 2,563) was used to investigate the effect of income on separation. The analysis demonstrated that money matters within relationships. Lottery wins temporarily reduced the odds of separation after men won. Men spent more on leisure and became more satisfied with their leisure time and social lives after winning. Nevertheless, most of the effect of lottery wins on union stability was not mediated by changes in satisfaction; instead, a direct effect of wins on the threshold to leave relationships was observed. No effect on union stability was found when women won. Women did not spend their winnings on leisure time but instead saved or spent money on durable items. These types of spending did not increase satisfaction. The findings suggested that, within families, men acted relatively independently, whereas the behavior of women was more family oriented.     

Ethical Issues in Coparent Counseling

Coparent counseling is a method of helping moderate- and high-conflict divorced or separated parents improve their shared caretaking of their children. Because it is a relatively new modality, its practitioners face ambiguity and uncertainty in their efforts to practice ethically. In the present article, information and recommendations are provided regarding confidentiality, separate meetings with parents, interactions with attorneys and the court, meetings with the children, insurance billing, competence, and informed consent.     

Divorce,living arrangements,and material well-being during the transition to adulthood in rural Malawi

In this paper, we use longitudinal data to investigate how parental death and divorce influence young women’s own experience of divorce in Malawi, a setting where women marry relatively early and unions are fragile. We find that maternal death and parental divorce are positively associated with divorce for young women but, after controlling for socio-demographic and marital characteristics, only the association with maternal death remains statistically significant. Maternal and paternal death are both strongly associated with women’s post-divorce living arrangements, which in turn affects their material well-being. This finding suggests that divorcing at a young age shapes the subsequent life chances of women; although some women return to their parental home and may have the opportunity to reset the transition to adulthood, other women begin their 20s as head of their own household and with considerable material disadvantage.