法律常見問題集04
11.如何申請被害人補償?
全數申請表格
http://www.cvpa.org.tw/newlaw98/form.htm
12.聲請給付扶養費用事件:
背景:未成年子女從小並未被父親或母親扶養，失去聯絡多年，生父或生母均未給付任何未成年子女之扶養相關費用後，迄子女成年後，突然接獲社會處通知，必須給付生父或生母積欠縣市政府之養護中心之醫療費用，應如何處理?
OO社會處函文要求子女(數十年前，父母離婚由生母監護)給付生父安置於OO縣OO養護中心所積欠之醫療費用。
處理方式
處理方法多種，因為個案而異，可以先查詢相關見解，之後委任律師處理:
1.與該社會處說明，從小並未被父或母扶養，且失去聯絡多年，生父或生母均未給付任何扶養相關費用之情形，並提出相關證明。(並避免衍生日後刑事遺棄罪議題)
2.民事扶養義務 可查司法院相關民事判決。
目前司法院提供甚多資訊，可進入
司法院查詢服務
或直接進入
裁判書查詢
選擇要查詢的法院
點選"民事"
輸入要查詢的關鍵字，例如 "給付&扶養&離婚&安置&醫療"
可以得出法院基本上目前對子女是否應給付扶養費用的可能標準、考量層面以及相關見解，或者法律看法。
相關見解
例如:台北地方法院有102年度家親聲字第139號民事判決，其判決要旨乃:"一、按直系血親相互間，互負扶養之義務，民法第1114條第1款定有明文。次按受扶養權利者有下列情形之一，由負扶養義務者負擔扶養義務顯失公平，負扶養義務者得請求法院減輕其扶養義務：1、對負扶養義務者、其配偶或直系血親故意為虐待、重大侮辱或其他身體、精神上之不法侵害行為。2、對負扶養義務者無正當理由未盡扶養義務。受扶養權利者對負扶養義務者有前項各款行為之一，且情節重大者，法院得免除其扶養義務，同法第1118條之1第1、2項分別定有明文。再按負扶養義務者有數人而其親等同一時，應各依經濟能力，分擔義務；受扶養權利者為直系血親尊親屬時，因負擔扶養義務而不能維持自己生活者，減輕其義務；扶養之程度，應按受扶養權利者之需要，與負擔扶養義務者之經濟能力及身分定之，此觀同法第1115條第3項、第1118條、第1119條規定自明。......二、本院認聲請人有未盡扶養義務之情形，但情節尚非重大，是其請求相對人應負擔完全之扶養義務，即顯失公平，揆諸上開民法第1118條之1第1項第2款規定，應減輕相對人之扶養義務。"
2012年11月7日 星期三
2012年11月1日 星期四
具體求刑案例
具體求刑案例
量刑
國家機關均受憲法拘束，"比例原則對行政、司法、立法權力之行使皆有適用"。"司法權之行使，亦應受比例原則之節制，因而，法律雖授權法官對合乎構成要件之犯罪事實，在一定刑罰範圍內有司法裁量之餘地，但裁量之行使應與罪刑相當，刑罰若與被告罪責顯然不成比例，雖量刑仍在法定範圍內，仍屬違法。"(法治斌、董保城，頁65)。
美國聯邦檢察官對Jimmy Dimora案求刑22年
Federal prosecutors recommend Jimmy Dimora be sentenced to at least 22 years in prison
Published: Monday, July 23, 2012, 5:46 PM Updated: Monday, July 23, 2012, 7:39 PM
By James F. McCarty, The Plain Dealer The Plain Dealer
View full sizeMarvin Fong, The Plain DealerFormer Cuyahoga County commissioner Jimmy Dimora arrives at court on Jan. 6 during the first week of his trial.
AKRON, Ohio -- Arguing that a "landmark corruption case compels a landmark corruption sentence," federal prosecutors Monday asked a judge to send Jimmy Dimora to prison for at least 22 years.
"Anything less will not accurately reflect the seriousness of Dimora’s crimes, will fail to promote respect for the law and will deprive the public of just punishment," Assistant U.S. Attorney Antoinette Bacon wrote in a 35-page recommendation. .....
"The systemic nature of Dimora’s criminal conduct, together with his efforts to obstruct this investigation, and his status as the highest ranking public official in Cuyahoga County warrants a significant sentence of at least 22 years imprisonment," Bacon wrote.
http://www.cleveland.com/countyincrisis/index.ssf/2012/07/federal_prosecutors_recommend.html
美國對Thompson案檢察官求刑介於9到11年
Submitted by Fox First at Ten on October 10th
SPOKANE, Wash – Newly released federal court documents are giving us our first look at how long Karl Thompson will spend in prison.
Thompson is a former Spokane Police officer who was convicted of using excessive force then lying about it to investigators in the 2006 beating death of an innocent man, Otto Zehm.
In the documents, prosecutors suggest a sentence of between 9 years and 11 years 3 months, with a preference for the longer sentence. They base that on several legal factors, including that it (1) was aggravated assault, (2) was committed with a deadly weapon, (3) resulted in serious bodily harm (death, in this case), (4) was committed under the ‘color of law' as a police officer, and (5) that Thompson obstructed justice by lying to investigators.
.......
Karl Thompson will be sentenced in federal court in downtown Spokane on November 15th.
http://www.myfoxspokane.com/news/headlines/story/us-prosecutors-karl-thompson-should-get-9-11-years-prison
求刑十四年判十年
Serial Arsonist In Metro East Sentenced To Ten Years
November 1, 2012 4:47 PM
A Belleville man has been sentenced to a decade in prison for a string of arsons and burglaries in rural St. Clair County.
24-year-old Bryan Boide was sentenced to ten years on three counts of Arson. Boide was also sentenced to six years of imprisonment on an additional three counts of Arson and three counts of Burglary.
The arsons took place over the spring of this year.
Prosecutors requested the maximum sentence of fourteen years of imprisonment be imposed on Boide despite his lack of any significant criminal history. The defendant requested that the court impose a sentence of between three and four years.
http://stlouis.cbslocal.com/2012/11/01/serial-arsonist-in-metro-east-sentenced-to-ten-years/
量刑
國家機關均受憲法拘束，"比例原則對行政、司法、立法權力之行使皆有適用"。"司法權之行使，亦應受比例原則之節制，因而，法律雖授權法官對合乎構成要件之犯罪事實，在一定刑罰範圍內有司法裁量之餘地，但裁量之行使應與罪刑相當，刑罰若與被告罪責顯然不成比例，雖量刑仍在法定範圍內，仍屬違法。"(法治斌、董保城，頁65)。
美國聯邦檢察官對Jimmy Dimora案求刑22年
Federal prosecutors recommend Jimmy Dimora be sentenced to at least 22 years in prison
Published: Monday, July 23, 2012, 5:46 PM Updated: Monday, July 23, 2012, 7:39 PM
By James F. McCarty, The Plain Dealer The Plain Dealer
View full sizeMarvin Fong, The Plain DealerFormer Cuyahoga County commissioner Jimmy Dimora arrives at court on Jan. 6 during the first week of his trial.
AKRON, Ohio -- Arguing that a "landmark corruption case compels a landmark corruption sentence," federal prosecutors Monday asked a judge to send Jimmy Dimora to prison for at least 22 years.
"Anything less will not accurately reflect the seriousness of Dimora’s crimes, will fail to promote respect for the law and will deprive the public of just punishment," Assistant U.S. Attorney Antoinette Bacon wrote in a 35-page recommendation. .....
"The systemic nature of Dimora’s criminal conduct, together with his efforts to obstruct this investigation, and his status as the highest ranking public official in Cuyahoga County warrants a significant sentence of at least 22 years imprisonment," Bacon wrote.
http://www.cleveland.com/countyincrisis/index.ssf/2012/07/federal_prosecutors_recommend.html
美國對Thompson案檢察官求刑介於9到11年
Submitted by Fox First at Ten on October 10th
SPOKANE, Wash – Newly released federal court documents are giving us our first look at how long Karl Thompson will spend in prison.
Thompson is a former Spokane Police officer who was convicted of using excessive force then lying about it to investigators in the 2006 beating death of an innocent man, Otto Zehm.
In the documents, prosecutors suggest a sentence of between 9 years and 11 years 3 months, with a preference for the longer sentence. They base that on several legal factors, including that it (1) was aggravated assault, (2) was committed with a deadly weapon, (3) resulted in serious bodily harm (death, in this case), (4) was committed under the ‘color of law' as a police officer, and (5) that Thompson obstructed justice by lying to investigators.
.......
Karl Thompson will be sentenced in federal court in downtown Spokane on November 15th.
http://www.myfoxspokane.com/news/headlines/story/us-prosecutors-karl-thompson-should-get-9-11-years-prison
求刑十四年判十年
Serial Arsonist In Metro East Sentenced To Ten Years
November 1, 2012 4:47 PM
A Belleville man has been sentenced to a decade in prison for a string of arsons and burglaries in rural St. Clair County.
24-year-old Bryan Boide was sentenced to ten years on three counts of Arson. Boide was also sentenced to six years of imprisonment on an additional three counts of Arson and three counts of Burglary.
The arsons took place over the spring of this year.
Prosecutors requested the maximum sentence of fourteen years of imprisonment be imposed on Boide despite his lack of any significant criminal history. The defendant requested that the court impose a sentence of between three and four years.
http://stlouis.cbslocal.com/2012/11/01/serial-arsonist-in-metro-east-sentenced-to-ten-years/
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