中法两国最高法院刑事审判职能比较研究

法国最高法院刑事审判职能主要体现在受理被告人不服各级法院终审判决而提起的撤销之诉和特定情况下的再审之诉,以维护法律的统一适用。我国最高人民法院刑事审判职能包括:受理高级人民法院的一审判决上诉,受理重大的一审案件,发动审判监督程序,并以发布司法解释的形式指导各级人民法院的审判。两国最高法院刑事审判职能相比,后者有若干不能有效维护法律统一适用的地方,进而影响了最高法院的权威。     

论最高法院的上诉终审功能

上诉终审功能是当今世界各国最高法院的基本功能。最高法院即最高上诉法院、终审法院,具有司法性、终审性和主权性的功能特点。司法独立、终极的上诉管辖权和严格的案件受理标准与分流程序是实现最高法院上诉终审功能的必要条件。不过,法律的全球化、区域化对各国最高法院上诉终审功能提出了挑战。     

Allegations of child sexual abuse in parenting disputes: An examination of judicial determinations in the Family Court of Australia

This study examined Family Court of Australia (FCA) judicial determinations in parenting disputes when allegations of child sexual abuse (CSA) are made by an interested party, usually the mother. For the study, 156 published judgments from 2013–2015 were examined to measure how often allegations of CSA are substantiated, suspected to be true, and disbelieved. The characteristics most common in substantiated versus unsubstantiated cases, evidence of abuse presented, and resulting parenting orders were assessed. Findings indicate that, against international comparisons, FCA judges substantiate cases very conservatively, with rates of substantiation much lower than in other studies. Allegations made by mothers against fathers were disproportionately unsubstantiated, as were those which did not fall under the Magellan case management system. Cases where the only evidence of CSA was a child’s disclosure and parent’s allegation were common in both substantiated and unsubstantiated cases, meaning that a lack of other evidence does not preclude a positive finding of risk of CSA by the FCA. Those cases also involving a protection order against the accused were more likely to be substantiated. Confirmation biases and a judicial tendency to err on the side of false negatives are discussed.     

Examining implementation and preliminary performance indicators of veterans treatment courts: The Kentucky experience

Veterans’ Treatment Courts (VTCs) are posited as a solution to offer rehabilitation for veterans involved in the criminal justice system. Despite the pervasive implementation of VTCs, there is little research focused specifically on VTC implementation and outcomes, which are based on other problem-solving court models such as drug court. The current study presents qualitative process evaluation data from key stakeholders (n = 21) and veteran participants (n = 4) to show accomplishments, challenges, and lessons learned during first-year implementation at two VTC sites. Quantitative performance data is also presented on veteran participants (n = 19) served during the first year to show: types of services, monitoring, judicial interaction, sanctions/therapeutic responses, and rewards, as well as preliminary data on recidivism. Qualitative data, from both key stakeholders and veteran participants, suggests that offering rehabilitation via various program components, services/referrals, and accountability are critical to the success of the VTC. Data also provides valuable lessons learned for VTC implementation including communication, collaboration, information/protocols, and resources. Performance data shows that a variety of services are utilized and that frequent judicial interaction, drug testing, and sanctions are cornerstones of the VTC. Implications and future directions for research are discussed.     

“Unnatural Fornication” Cases Under State-Socialism: A Hungarian–Slovenian Comparative Social-Historical Approach

This comparative social-historical study examines different versions of state-socialist body politics manifested in Hungary and Slovenia mainly during the 1950s by using archive material of “unnatural fornication” court cases. By analyzing the available Hungarian “természet elleni fajtalanság” and Slovenian “nenaravno ob?evanje” court cases, we can shed light on how the defendants were treated by the police and the judiciary. On the basis of these archive data that have never been examined before from these angles, we can construct an at least partial picture of the practices and consequences of state surveillance of same-sex-attracted men during state-socialism. The article explores the functioning of state-socialist social control mechanisms directed at nonnormative sexualities that had long-lasting consequences on the social representation of homosexuality in both countries.     

REVISITING THE AGENT OF SOCIAL CONTROL ROLE: IMPLICATIONS FOR SUBSTANCE ABUSE TREATMENT

The agent of social control role and its responsibilities and goals provide an important function in social work practice. Workers in varied positions often combine this role with others that define the profession. Yet in the not too distant past, a debate arose as to whether this role, focusing on promoting and protecting the general welfare of society, could be congruent with also fostering the improved functioning and self‐determination of individual clients. Periodically, this topic emerges to challenge the appropriateness of these dual activities in satisfactorily and equitably serving both constituents.

Within the field of substance abuse, court‐mandated referrals have established a need for practitioners to perform social control tasks to monitor and report clients' compliance with and progress in treatment. This has created a conflict for many who consider their practice to be client‐centered. This article will explore the dilemmas experienced in attempting to simultaneously carry out both roles and the guidance provided from the National Association of Social Workers (NASW) Code of Ethics. In addition, proposed strategies to reduce the duality of difficulties will be summarized.     

关于我国刑事诉讼贯彻直接言词原则的思考

直接言词原则是现代刑事诉讼基本原则之一,它在许多国家刑事诉讼实践中得到了贯彻。虽然我国刑事诉讼法及有关司法解释的一些规定也体现了直接言词原则的精神,但由于立法上、司法实践上存在贯彻执行这一原则的障碍,使得这一原则在我国刑事诉讼中成了一种摆设。因而,在我国要贯彻直接言词原则,必须建立证人等出庭的制度,限制书面言词证据的使用,进一步加强庭审方式的改革,强化庭审的功能。从剖析我国贯彻这一原则的障碍入手,提出了在我国贯彻直接言词原则的设想。     

论知识产权保护双轨制的冲突及协调

知识产权保护在我国存在行政管理和司法救济两种方式,双轨制的保护模式有其正当理由,体现了我国的国情特色,也符合有关国际公约要求.知识产权保护双轨制的冲突分为显性冲突和隐性冲突两种,现行法律规则使得冲突具有可能性.解决双轨制冲突的根本出路在于设立专门性的知识产权上诉法院.知识产权上诉法院的设立存在一定的制度障碍,但是这些障碍可以有效克服.     

证人出庭作证难的法律思考

证人不愿出庭作证、证人出庭难是在我国特定的历史文化背景下衍生出来的一种客观现实。这种客观现实是由多种原因造成的,既有文化心理上的原因,也有价值层面上的原因,更有制度层面上的原因。因此,考虑我国的国情,在不违背历史文化传统和现有道德规范的前提下,建立尽善尽美的证人制度是我们每一个法律工作者努力追求的目标。     

Estimating the effectiveness of a misdemeanor drug diversion program using propensity score matching and survival analyses

This study analyzes three years of data on misdemeanor drug offenders in Winnebago County, Wisconsin. A portion of these offenders opted into a Misdemeanor Drug Diversion Program (MDDP) offered instead of traditional adjudication. Recidivism in the treatment and comparison groups is estimated using standard binary response techniques augmented with propensity score matching to address selection bias. Results show that the MDDP reduces the probability of re-offense by 16%, after adjusting for possible selection bias. Cox proportional hazard modeling is also used to assess time-to-re-offense differentials between the treatment and comparison groups. The survival analysis indicates that the hazard rate of re-offense is 60% lower per day among those treated with the MDDP program than those who did not complete the program. The average number of days to re-offense among those that do re-offend is 297 days in the treatment group and 203 days in the comparison group.