从法律规范到裁判准据

法律规范对法官裁判具有先决强制力,对裁判内容作出事先的限定,但法律规范无法为法官提供审判所需的更为详尽的裁判信息;在法官并不习惯对法律规范作出解释然后才适用法律的司法背景下,法官须努力让法律规范转换为直接导引裁判结论的“裁判准据”;在转换过程中,法官对关涉事实认定的“事理逻辑”的阐释具有至关重要的作用。裁判准据大致包括两个要素:对个案的事实认定;依据其他社会规范对案件事实及所据法规范所作之阐释。     

Differences between resource control types revisited: A short term longitudinal study

Hawley's influential resource control theory (RCT) posits that both coercive and prosocial strategies may yield social dominance, as indexed by resource control. Based on differences in youths’ relative use of these strategies, RCT a priori defines five distinct subtypes. Several studies by Hawley and colleagues have revealed substantial differences between subtypes in terms of obtained resource control and various social characteristics (e.g., agreeableness). The present longitudinal study (N = 394; M _age = 10.3; SD = 0.5) expands on previous work. Firstly, because several items used to assess strategies in RCT appear to confound strategy use with the resulting benefits (resource control), we disentangled between strategy use as such and obtained resource control. Secondly whereas previous work has been exclusively cross‐sectional, the present study was longitudinal. ANOVAs comparing subgroups provided support for some core tenets of RCT, but not for others. For instance, bistrategic children scored high on both resource control and perceived popularity. However, bistrategics engaged in elevated bullying, and whereas Hawley asserts that they are proficient in balancing ‘getting ahead’ with ‘getting along’, their behavior appeared to evoke clear negative reactions in the peer group at large. Findings also showed that non‐controllers did not experience more negative outcomes than their peers across all domains.     

A Socioecological Perspective on Intimate Partner Violence Research: A Decade in Review

Intimate partner violence (IPV) is a significant public health issue impacting millions globally. To frame this decade in review, we organize the research published since 2010 at each of four ecological levels (individual, relational, community, and sociocultural) to demonstrate advances and gaps in each. At the individual and relational level, we review the prevalence, directionality, typologies, predictors, and outcomes of IPV. We attend to postseparation dynamics as well as research on youth exposure. We also discuss key theoretical advances. Our review of individual and relational research is more substantial as most research on IPV focuses on these factors with less attention to community and sociocultural contexts. Reflecting the state of the research within each ecological level, we review men's violence against women and incorporate developing research on men's victimization, reciprocal violence between men and women, and IPV among same-sex partners. Throughout the review, we address key developments in knowledge as well as gaps and methodological strengths and limitations. We close with an integrated summary and recommendations for rigorous collaborative research across disciplines in the next decade to broaden our knowledge base and inform preventions and interventions.     

论《老子》节俭思想及其现代转换

《老子》俭的思想内涵丰富,呈现为节俭消费、简约生活、自我约束的内在修养等3种表达方式,它既是形上之道的具体要求,又是修身治国的必由之路。而"无知无欲"、"知足知止"、"自然无为"等是《老子》节俭思想的3条基本实现路径。《老子》节俭思想对抑制消费主义的泛滥,促进人与自然的和谐,增进个体身与心的调和都有重要的现实意义。     

行政强制范畴之重构

作为行政法上强制性行为的统称,行政强制可以根据基础决定与强制执行是否合一为标准被划分为两类独立的行为,即行政强制执行和行政即时强制。行政强制措施与行政强制是一种整体与部分的关系,属于行政强制行为内在的构成要素之一。只有当某种静态的手段被特定的行政主体所采用时,才会连同其他要素一起转化为一类正式的行政强制行为。     

"Never right, never wrong": child welfare and social work in England and Sweden

When are parents “unfit” to care for their own children? As in many other countries, social workers in England and Sweden have the unenviable task of forming such judgments. On behalf of society at large, social workers must balance the rights of parents to provide continuing care with the responsibilities of the state in ensuring adequate care of children. They are involved in professional judgments which are also inherently political. In both England and Sweden social workers are able to seek legal orders which, if granted, permit compulsory removal of children against the wishes of parents. In such cases social workers are centrally involved in processes which remove ordinary rights of citizenship from their fellow members of society. The rights of parents and children, together with the responsibilities of the state to each class of citizen, are clearly in focus: intervention in family life requires both grounds and legitimation. But what is the basis of intervention in the two societies? Social work practices in Sweden and England suggest very different answers to this question. In explaining these differences it is necessary to address much broader variations of social and political culture in the two societies. In so doing, variations in social work practice can be located in different cultural values and systems of legitimation. Instabilities and pathologies of professional practices can also be identified within both England and Sweden. These too are quite different in the two societies.     

哈特对法律概念命令说的批判——兼谈法律的强制性特征

法律概念的命令说在西方源于阿奎那 ,经霍布斯至奥斯丁趋于成熟 ,强调法律的强制性是命令说的基本特征。 2 0世纪西方著名法学家哈特对法律概念的命令说进行了系统的批判 ,其中对授权性规范的强制性予以否认。笔者认为 ,将强制性作为法律的基本特征是可以质疑的 ,这种观点是专制主义的义务本位法文化的表现 ,应予革除。     

民事诉讼强制措施性质问题辩证

传统理论将妨害民事诉讼强制措施的性质仅认定为“排除手段”、“强制手段”、“教育手段”、“强制教育手段”或“具有制裁性的强制教育手段”皆不够准确。其真正本质应是程序性法律制裁。引起认识混乱的因素主要有重实体轻程序传统的影响以及由此带来的法律制裁理论研究的缺陷、立法设计的误导 ,另外也有法学研究方法的偏颇等。因此 ,正确厘定民事诉讼强制措施的性质对于完善法律制裁理论和民事诉讼法学理论 ,强化人们的程序价值理念 ,皆有重要意义     

Sexual violence in serial form: Breaking Bad habits on TV

Walter White’s (Bryan Cranston) attempts to isolate, degrade, exploit, frighten, and control his wife Skyler (Anna Gunn) are tactics that are well-documented in studies focusing on abuse. Yet, despite the representation of both implicit and explicit forms of domestic abuse and sexual violence throughout Breaking Bad (2008–2013), there is an apparent disconnect between how this behaviour is perceived on screen and how it is ostensibly regarded in society. It is here, at the intersection of audience reception and sociological theory that I argue Breaking Bad represents abuse as part of a broader negotiation of masculinity, one that contributes to the ongoing marginalization of women’s voices in both visual media narratives and, by extension, society. In particular, I argue that despite the series’ long-form structure, the lack of emphasis placed on instances of coercive control by the writers and directors is partly responsible for contributing towards a culture of misogyny and victim-blaming fostered by fans towards Skyler evident in numerous online blog posts, fan forums, social media platforms, and Anna Gunn’s own treatise on the portrayal of her character in the New York Times.     

论审判机关的强制措施权

刑事诉讼法赋予人民法院拥有强制措施决定权、变更权,但是人民法院对这一权力的拥有严重损害了司法正义,违背了诉讼职能区分原理的要求,而且在司法实践中不具备现实可操作性。只有取消人民法院这一权力才能消除上述弊端,使我国刑事诉讼法反映正义的要求,保证其自身的科学性和合理性。