论我国应建立犯罪被害人国家补偿制度

犯罪被害人国家补偿制度是指遭受犯罪侵害的被害人或其近亲属在一定条件下可获得国家提供的经济补偿的法律制度。这一制度在西方国家运行40年来已取得良好的社会效果,为我国提供了可借鉴的有益经验。我国目前的被害人保护立法有严重缺陷,缺乏对犯罪被害人的人文关怀,由此还引发诸多社会问题。在我国建立这一制度是实现正义、保障人权、控制犯罪、完善法制的必要,也是切实可行之策。     

Sentiments of justice

In empirical research on social inequality one question remains largely open: Why are certain types of social inequalities legitimate or not? Three theoretical approaches to this question are discussed: the universalist, the cultural, and the interactionist approach. The interactionist approach is defended: Sentiments of justice can be predicted or deduced from the system in which the actors are located. It is important to know whether actors have reasons to be interested in the system of interaction in question, including reasons for approving the rules and the mode of its functioning. At the same time, the existence of an unrestricted residue must also be recognized: With good reasons one group of individuals can find that a certain state of affairs is just, another group that it is unjust. Because divergences of opinion are inescapable, certain questions pertaining to the issue of social justice can only be resolved by the method of regulated political debate. Questions of social justice can in no way be resolved a priori.     

论刑法学与犯罪学研究的整体互动

在中国,犯罪学与刑法学彼此分离各自为“家”,导致了中国社会过于看重严刑峻法而忽视犯罪原因,使得犯罪虽受到严惩但犯罪情势依然十分严重。如何扭转这一现象,尽快使刑法学惩罚犯罪的研究与犯罪学预防犯罪的研究相互结合,构筑刑法学与犯罪学整体相互联动的格局,是中国社会实现社会稳定的现实政治需要,也是中国社会经济发展的自然要求,更是中国社会通过历史反思对历史的经验与教训进行总结的必然趋势,从而实现使中国的刑事政策从刑事惩罚为主到刑事预防为主的战略转移,刑事法理论对犯罪构成和刑事责任的重点研究为主要转移到对犯罪原因和犯罪预防为主的研究重点上来,以此迎接一个国家繁荣昌盛但犯罪并不猖獗疯狂的时代的到来。     

论刑事法的历史分析

历史分析，作为法学重要的研究方法之一，对于刑事法研究具有积极意义。对中国当代刑事法进行历史分析，并非去发现所谓的“民族精神”，而是寻找刑事法律制度得以形成的脉络，以及在法制演进中的政治、经济和文化因素。在刑事法学研究中运用这种分析方法，具体表现为历史比较研究、历史的社会研究以及历史的价值研究。对中国刑事法发展作历史研究，应区分不同时代，并有目的性地进行研究，进而挖掘其中可为当代刑事法发展利用的有益因素。     

刑法修正案（七）“组织、领导传销罪”的解读

非法传销活动是我国改革开放后市场经济活动尚未完全纳入法律调控时期出现的一种经济失范现象，并随着我国经济发展的速度和规模愈演愈烈，已经严重影响到经济和社会的稳定，为此刑法修正案（七）增补组织、领导传销活动罪这一新的罪名。然而，正是因为两级最高司法机关曾经的司法文件对该种行为有截然相左的意见，所以在刑法修正案（七）明确了该种行为的罪名。那么如何正确适用法律的规定，不仅仅是司法问题，更有必要在理论上对其进行必要的解读。     

Lessons from the Third World for Understanding American Criminal Justice

This paper argues for and attempts to demonstrate the case for including materials related to the operation of Third World criminal justice in courses dealing with American criminal justice system. The author argues that an examination of the contexts and processes of criminal justice in Third World nations increases one's ability to understand and critique the history and operations of our criminal justice enterprises. The Third World context offers laboratories for testing assumptions about American criminal justice without the implicitly pervasive ideological overtones we come to accept unquestionably in our own system simply because it is the one in which we operate.

Within the context of poverty, “dual societies,” chronic political instability, the struggle for economic development, and colonialism, the Third World offers an opportunity to study the interaction and impact of law, politics, economics, social control, and social change on the development and operations of criminal justice. Using examples from the literature of anthropology, law and social change, and political and economic development, the author attempts to demonstrate the usefulness of this interdisciplinary approach and the Third World context in teaching about the criminal justice system.     

THE CENTRAL PLACE OF RACE IN CRIME AND JUSTICE—THE AMERICAN SOCIETY OF CRIMINOLOGY'S 2011 SUTHERLAND ADDRESS*

In the United States and elsewhere, racial and ethnic disparities in crime and criminal justice are relatively ubiquitous. Yet the meaning of such disparities is not well understood. To address this concern, periodically there have been calls for research that takes into account the broader structural context of the racially and ethnically inequitable crime and justice patterns. However, a comprehensive approach to understanding such inequality is seldom applied in research. In this article, I review findings from a program of research on crime across race–ethnic neighborhoods that I have undertaken with Lauren J. Krivo and other colleagues to provide, and assess, such a framework. The starting point of our approach is that ethnoracial inequality in neighborhood crime is an outgrowth of a racialized social structure maintained largely through racial residential segregation. As anticipated, the findings illustrate the value added from research that embeds its assessment of crime and justice within an understanding of structured societal inequality. From these results, I call for placing race and ethnicity at the center of the study of crime and justice.     

恢复性司法对我国刑事诉讼制度的影响

恢复性司法是一种不同于传统司法模式的新型司法模式,它寻求尽可能利用罪犯、受害者和社区的积极和自愿参与的方式,恢复受犯罪影响的所有当事方的一切权益。我国引入恢复性司法既具有刑事司法实践、刑事观念、刑事制度和社会发展的基础,也与我国当前的刑事诉讼制度存在一定冲突。恢复性司法实践与理念对我国刑事诉讼可能产生的影响,突出表现在刑事观念、诉讼制度和检察机关法律监督方式等诸多方面。     

Theorizing Criminal Law Reform

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture.     

论视频监控的犯罪预防功能及犯罪侦查价值

各国的犯罪预防理论发展至今,已经形成了比较完善的犯罪预防体系,主要包括司法预防、社会预防和情景预防三种模式。在我国的犯罪预防体系中,向来重视司法预防和社会预防,而对情景预防关注不够,情景预防措施尚不完善。作为一种对犯罪的干预,视频监控是一种对情境犯罪的干预,研究发掘其在犯罪预防中的作用对完善犯罪预防体系具有重要意义。同时,视频监控系统在犯罪侦查方面也具有重要作用。     

Community Safety and Social Policy

This article examines community safety policy. In many countries community safety has become a replacement discourse for situational crime prevention, although in some countries such as the UK, it too is threatened with replacement by the narrower concerns of crime reduction. Community safety represents the apparent merging of the concerns of criminal justice and social policy, specifically over questions of social inclusion and exclusion. Focusing in the main upon UK policy, but also drawing upon experience elsewhere, this article scrutinises the policy of community safety, arguing that while it offers an inclusionary vision of crime control, its practice may be something rather different. More specifically, and in common with the trajectory of much advanced liberal social policy, in practice community safety may have an exclusionary effect. Thus, while community safety may represent the convergence of social and criminal justice policies, it does so on neoliberal rather than welfare liberal terms. It also means that community safety has a closer connection to policies of punitive sovereignty – particularly sentencing policies of mass incarceration – than might often be assumed.     

刑事救济法律监督机制的构建

在实现刑事司法公正的过程中，救济程序扮演着重要角色，科学严密的救济程序作为刑事诉讼活动的有机组成，能够有效地预防和纠正冤、假、错案。无监督则无公正，刑事救济同样需要检察机关的监督。对包括审前程序在内的刑事诉讼活动全过程中存在的刑事救济程序进行研究，查找存在的突出问题，结合域外相关理论、实践特别是我国检察机关法律监督的具体情况，提出改革我国刑事救济法律监督程序的基本构想，为刑事司法救济程序的研究以及实践打下良好的基础，通过检察机关法律监督的视角阐明检察机关对刑事救济法律监督的具体对策措施。     

The penology of racial innocence: the erasure of racism in the study and practice of punishment

In post–civil rights America, the ascendance of “law-and-order” politics and “postracial” ideology have given rise to what we call the penology of racial innocence. The penology of racial innocence is a framework for assessing the role of race in penal policies and institutions, one that begins with the presumption that criminal justice is innocent of racial power until proven otherwise. Countervailing sociolegal changes render this framework particularly problematic. On the one hand, the definition of racism has contracted in antidiscrimination law and in many social scientific studies of criminal justice, so that racism is defined narrowly as intentional and causally discrete harm. On the other hand, criminal justice institutions have expanded to affect historically unprecedented numbers of people of color, with penal policies broadening in ways that render the identification of racial intent and causation especially difficult. Analyses employing the penology of racial innocence examine the ever-expanding criminal justice system with limited definitions of racism, ultimately contributing to the erasure of racial power. Both racism and criminal justice operate in systemic and serpentine ways; our conceptual tools and methods, therefore, need to be equally systemic and capacious.     

INTERROGATING RACE,CRIME, AND JUSTICE IN A TIME OF UNEASE AND RACIAL TENSION

This address has a twofold purpose. First, as the first African American to serve as president of the American Society of Criminology (ASC), I celebrate the contributions of scholars of color to the study of crime and criminal justice and to the ASC. I do so by pointing out the accomplishments of several African American scholars whose contributions are numerous and exemplary. I also emphasize that African Americans are joined in their efforts by scholars of multiple other colors, including, Latinos/as, Native Americans, and Asians. Second, in view of responses to apparent unrest and racial tension in U.S. society that is signaled by lethal violence between police and U.S. residents of color, I offer four recommendations regarding how we might proceed with our research, and report our findings, in ways that improve the likelihood of helping to inform societal debates and policy developments around crime and justice issues. In my conclusion, I encourage the ASC to 1) continue to grow the diversity of its membership and to integrate the research and findings of scholars of color into the mainstream of criminology; and 2) take further steps to conduct research and share findings with diverse audiences to ensure that post‐truth does not become normative regarding crime and justice issues.     

对社会危害性理论刑法学地位的新的曲解与新的辩护

在我国刑法学中,社会危害性理论的刑法学地位问题一直在争议之中。有学者将社区犯罪观和刑事和解观作为新的突破口,试图将社会危害性理论予以消解,以期最终将社会危害性理论从我国刑法学中清除。但是,由于包含着诸多曲解,故这一清除不仅没有实现,反而可被用来加固社会危害性理论在我国刑法学中的地位。     

条件预防还是动机预防——日本预防青少年犯罪的成就与启示

社会相对稳定,政治相对清明,经济发展平稳,家庭伦理教育与学校教育的成功和高效的刑事司法制度,社会环境的净化,促成了日本社会低犯罪率的成就。日本的经验使我们必要对犯罪预防中的条件预防与动机预防进行评估。犯罪是多因的,因此,应当综合治理。从动机预防和条件预防两个方面做好犯罪预防工作。     

How Is Criminal Justice Related to the Rest of Justice?

Are principles of criminal justice derived from a broader conception of justice, or does criminal justice involve some of its own distinctive principles such that it is not—for example—an aspect of distributive justice? Examining considerations regarding luck and desert provides an illuminating approach to this issue. The notion of desert has largely been excised from a great deal of recent political theorizing, and in particular, it has been eliminated from many influential conceptions of distributive justice. It is widely held that the pervasiveness of luck renders desert inappropriate to contexts of distributive justice, and incompatible with the freedom and equality of persons in a just political community. Should considerations of desert also have a minimal role in criminal justice—where they seem to still be important? Are considerations of desert in the context of criminal justice consistent with persons being free and equal participants in a just political community? How are principles of criminal justice related to principles of distributive justice and political justice in an overall just society? Many scholars agree that criminal justice presupposes an adequately just society. Still, that leaves open just how criminal justice relates to justice overall. That is the present topic.     

Hukou Status and Sentencing in the Wake of Internal Migration: The Penalty Effect of Being Rural‐to‐Urban Migrants in China

While the disparate legal treatment of immigrants in Western jurisdictions has been well documented in sociolegal scholarship, the potential legal inequality experienced by rural‐to‐urban migrants in China, who have become China's largest disadvantaged social group, has not garnered much attention. To fill the gap, this article empirically examines sentencing disparities related to the Hukou status of criminal offenders by employing quantitative data on criminal case processing in China. The results of our analysis reveal that rural‐to‐urban migrant defendants are more likely to be sentenced to prison than their urban counterparts. In addition, the penalty effect of being a rural‐to‐urban migrant is further magnified in jurisdictions with a larger concentration of migrants. Our findings suggest that discrimination against rural‐to‐urban migrants has become an emerging, significant form of legal inequality in China's criminal justice system, refracting and reinforcing the deep‐seated structural inequality associated with Hukou status in China. The research and policy implications of these findings are discussed.     

犯罪网络分析:社会网络分析在有组织犯罪研究中的应用

在刑事司法领域所使用的"网络"(networks)一词通常是指犯罪组织。一个犯罪网络首先也是一个社会网络,社会网络分析是对社会关系结构及其属性加以分析的一套规范和方法。它主要分析的是不同社会单位(个体、群体或社会)所构成的关系的结构及其属性。自美国"9.11事件"以来,世界各国政府、学者、媒体逐渐认识到社会网络分析在有组织犯罪防控研究中的重要作用,纷纷使用社会网络分析方法对恐怖主义犯罪等有组织犯罪进行犯罪网络分析、研究,通过解构犯罪组织,发现犯罪成员体系、结构特征与行动目标,从而对有组织犯罪进行有效预防和打击。我国应充分认识社会网络分析在现代有组织犯罪防控研究中的重要价值,全面了解国外有关理论与应用发展,积极采取政府资助项目研发与直接设立研究机构等多种手段,促进犯罪网络分析理论与方法在我国的迅速发展。