卧底侦查所获证据材料的证据能力

卧底侦查是指有公务员身份的警察.为了瓦解组织犯罪而化名潜伏到犯罪集团里的侦查活动。与卧底侦查相关的概念有诱惑侦查、卧底人、线人等。诱惑侦查俗称"钓鱼",是指侦查机关为逮捕犯罪嫌疑人,以实施某种有利可图为诱饵,暗示或诱使其实施犯罪,待犯罪实施时或结果发生后,拘捕被诱惑者。卧底人(又称普通卧底者)是指没有公务员警察身份的人,以自己的真实身份     

贩卖毒品案件中的诱惑侦查:默认现实抑或法律规制——以四川省成都市W区、X区及J县为研究样本

诱惑侦查是侦查机关设置陷阱而诱使侦查对象犯罪,在侦查对象犯罪时对其适用强制措施或收集证据的一种特殊侦查方法,普遍使用在贩卖毒品案件的侦破过程中.通过对毒品犯罪诱惑侦查的实证考察,可以发现诱惑侦查在实践中被经常滥用,而其根源就在于欠缺法律规定.因此,我们有必要从实践与理性的角度对诱惑侦查重新进行审视,在认真分析存在问题的基础上从立法的高度建立起我国的诱惑侦查制度.     

试论诱惑侦查的法律规制

诱惑侦查在我国刑事司法领域尚无明确的法律规定。诱惑侦查对于打击刑事犯罪,维护社会治安的实际需要来看,有其合理性和必要性。但诱惑侦查又有一些弊端。为消除其弊端,有必要进行合理的规制。     

浅议“钓鱼执法”的正当性

为方便搜集证据、打击行政违法行为,刑事司法中的诱惑侦查手段屡屡被运用到行政执法中,即人们所称的钓鱼式行政执法。不久前上海发生了引人瞩目的孙中界、张军等钓鱼执法事件,以案说法,浅近探讨其正当性及对今后行政执法的建议。     

论新闻媒体侵犯公民隐私权协调

随着信息社会的发展,新闻媒体在现代社会中发挥着越来越重要的作用.而新闻自由作为宪法保护的基本自由,是基于公共利益为内容的.但在新闻报道中也普遍存在隐私权受报道权侵犯的弊端.在正义和公平面前,如何平衡新闻报道权与隐私权,使报道既满足受众的需要,又不侵犯公众的隐私权,这是一个值得探讨的问题.现实生活中,人们既想要获知更多的信息,扩大自己的视野,满足自己的精神需求,又不愿自己的私密信息被别人了解.与此同时,媒体为了满足大众窥视的欲望而将触角深入到各个方面,造成二者的冲突不可避免.本文就新闻报道权与个人隐私权的相互影响及如何构建彼此的和谐关系进行探讨,希望在新闻自由的前提下合理保护隐私权.     

诱惑侦查的程序控制

为应对日益严峻的隐形化犯罪的挑战,在过去二三十年间的侦查实践中,诱惑侦查得到了更多的应用.尽管2012年修改刑事诉讼法过程中,通过新增第151条的规定试图提升此类侦查手段的法治化程度,但由于法律规定的宽泛与模糊、司法处断原则的失当与片面,诱惑侦查适用过程中凸显出执法无序与司法失范的弊端.解决问题的出路是,在法律解释论层面,应当对合法性判断标准、适用对象、程序控制机制与违法制裁后果予以明确;在司法裁断方面,应当跳出"犯意引诱"与"机会提供"二分法的窠臼,基于我国特有的侦查权规制现状,采用控权最为严格的分离式混合模式,即无论是违反诱发他人产生犯意的主观标准,还是僭越客观标准,即侦查人员使用了过度且令普通人难以抵御的诱惑手法,均属违法.     

刑事侦查中线人使用的二元法律规制

侦查机关可以利用线人收集证据与信息,但是线人使用也可能带来伪造证据、诱惑犯罪等弊端,由违法犯罪人员充任的线人更是如此。可以利用侦查契约理论与正当程序理论、人权保障理论等对线人使用进行分析,为相关的法律规制奠定基础。线人使用的二元法律规制分别是以侦查契约理论为基础的"契约内"规制,与以正当程序理论、人权保障理论等为基础的"契约外"规制。     

美国：FBI钓鱼记

在FBI的一系列调查案中，“钓鱼执法”是其打击腐败和欺诈的惯用招式。“钓鱼执法”，在美国也叫执法圈套（entrapment），意指在掌握一定证据的同时，为了抓获已知犯罪嫌疑人，采用“诱惑”的方式，以利引之，使其落网。据美国联邦检察官办公室2014年3月26日消息，美国北卡罗来纳州最大的城市夏洛特市的市长帕特里克·坎农（Patrick Cannon）因涉嫌腐败被联邦调查局特工“钓鱼执法”。     

钓鱼执法的合法性探究

钓鱼执法作为与刑事侦查中的诱惑侦查性质类似的手段现在在行政执法活动中日益普遍,但钓鱼执法显然既违背了行政实体法,又违背了行政诉讼法。同时,其在行政执法活动中的泛滥还严重影响了法律和公权力的公信力,扰乱社会秩序,损害社会的公序良俗,因此应得到严格禁止     

论新刑事诉讼法视阈下毒品犯罪侦查中诱惑侦查的法律规制

打击毒品犯罪中,诱惑侦查措施经常被侦查机关所采用.本文以新刑事诉讼法规定为视角,从诱惑侦查在毒品犯罪侦查中的独特功能与价值入手,结合我国毒品犯罪侦查实践,探讨毒品犯罪侦查中诱惑侦查的合理规制.     

Comparing Electronic News Media Reports of Potential Bioterrorism-Related Incidents Involving Unknown White Powder to Reports Received by the United States Centers for Disease Control and Prevention and the Federal Bureau of Investigation: U.S.A., 2009–2011

There have been periodic electronic news media reports of potential bioterrorism-related incidents involving unknown substances (often referred to as “white powder”) since the 2001 intentional dissemination of Bacillus anthracis through the U.S. Postal System. This study reviewed the number of unknown “white powder” incidents reported online by the electronic news media and compared them with unknown “white powder” incidents reported to the U.S. Centers for Disease Control and Prevention (CDC) and the U.S. Federal Bureau of Investigation (FBI) during a 2-year period from June 1, 2009 and May 31, 2011. Results identified 297 electronic news media reports, 538 CDC reports, and 384 FBI reports of unknown “white powder.” This study showed different unknown “white powder” incidents captured by each of the three sources. However, the authors could not determine the public health implications of this discordance.     

Protecting Journalists’ Sources Without a Shield: Four Proposals

Journalists’ right to protect the identities of their confidential sources relies on an inconsistent set of court decisions based on constitutional and common law interpretations and state statutes. Efforts to bring some consistency to federal law through the passage of a shield law have stalled while journalists face new threats because of the vulnerability of their communications to discovery and monitoring by third parties. Also, the entry of non-professional communicators into the news ecosystem is causing courts to reevaluate and redefine long-standing protections. This article proposes four ways that sources could be better protected from unmasking without the passage of a shield law: improving whistleblower laws to better protect people who report illegal or unethical actions to the media; vastly reducing the number of government secrets to make “leaking” less attractive or necessary; changing legal strategy to focus on protecting the anonymity of sources instead of the rights of journalists to keep secrets; and more widespread and intelligent use of encrypted applications and software could all improve the security of journalistic sources. Because of the complexity of amending multiple whistleblower protection laws and changing the government’s document classification system, the article argues that the best solutions may be to persuade news organizations to change legal tactics and to use better encryption technology.     

Online Public Response to Dutch News About Money Laundering

In this paper we analyze how Dutch Public Prosecution’s press releases about money laundering and underground banking are received by producers and consumers of online news reports. First we take a closer look at how journalists (re)framed six official press releases in 75 news reports. It turns out that journalists do not regularly adopt the success frame that the Public Prosecution uses in its press releases. Furthermore, the role of the Public Prosecution Service or the police is downplayed. The moral message that “crime should not pay” receives no coverage in news reports. Second, we analyze how the news reports generated 276 online comments. We distinguish three ways in which online commenters respond to news reports; they (1) appreciate, (2) downplay or (3) condemn the authorities’ success. Commenters are particularly likely to downplay or condemn the police’s success. When a news report focuses on ‘underground bankers’, commenters often express a negative opinion about the effort to curb money laundering. It also appears that readers did not always understand the use of a term like underground banking.     

Giving Users A Plain Deal: Contract-Related Media Liability For Unmasking Anonymous Commenters

Could news organizations face civil liability for voluntarily unmasking their anonymous online commenters? This article examines that nascent legal question through a discussion of contract law applied to a study of seven news Web sites’ policies and practices. The study finds that although the news organizations claim that they zealously guard user privacy and will resist unmasking commenters under almost any circumstances, most of them have user agreements that would likely immunize them from civil liability for almost any reason. Are users getting a plain deal?     

The Representation of Two Competing Visions on the Fundamentals of Copyright: A Content Analysis of Associated Press News Coverage on Copyright, 2004–2009

The importance of the public's understanding of copyright has increased in the digital age, and mainstream media play a significant role in informing the public of copyright law and policy. This study identifies two competing visions on the fundamentals of copyright—the private property vision and the public policy vision—and examines which vision is more predominantly covered by mainstream news media via a quantitative content analysis of Associated Press wire service stories on copyright. The findings suggest that, although the number of sources favoring copyright users’ rights has somewhat increased in the most recent two years, overall the private property vision has been more dominantly covered than the public policy vision in the AP news stories. The study concludes that the mainstream media coverage on copyright needs to move toward a more balanced point where both sides of the debate have an equal chance to present their views.     

Bringing the battlefield into the classroom: using video games to teach and assess international humanitarian law

The graphic and widespread atrocities committed during conflicts around the world and broadcast across 24/7 news and social media have made war never feel so close and the powerlessness of law seem so real. This raises difficulties in engaging students in real-life decision-making quandaries where military necessity meets legalism, as well as fundamental ethical questions about the use of realistic, yet explicit, imagery in the classroom. The School of Law at Queen’s University Belfast has developed a series of innovative computer scenarios based on the Arma 3 open world tactical war simulator. A variety of formative scenarios (addressing issues such as cluster munitions and landmines) were developed to familiarise the students with the factual scenario and the computer technology. Subsequently, students engaged in a summative assessment to test their legal understanding in the face of increasingly challenging conflict situations, in particular grey zones where legal argument can justify seemingly morally wrongful acts during war. This paper examines both the learning objectives of this project, and the project development cycle – from the initial proposal to its implementation in class, as well as positing the benefits and drawbacks in integrating technology and games into the legal teaching environment, reflecting on the emerging and traditional pedagogy in this area.     

我国的媒体侵权责任与媒体权利保护——兼与张新宝教授“新闻(媒体)侵权否认说”商榷

《民法通则》实施以来,学者把侵权责任法与新闻传播法相互结合进行研究,形成了媒体侵权责任法这一边缘学科。这一研究方式弥补了新闻传播法立法不足的问题,发挥了制裁媒体侵权、保护媒体权利和表达自由的重要作用。《侵权责任法》在规定侵权责任一般条款的同时,又规定了网络侵权责任,为正确认定媒体侵权责任、切实保护媒体权利提供了充分的法律依据。媒体侵权责任法将会以侵权责任法为基础继续发挥重要的法律调整作用。     

Struggling to strike the right balance between interests at stake: The ‘Yarovaya’, ‘Fake news’ and ‘Disrespect’ laws as examples of ill-conceived legislation in the age of modern technology

The article deals with the legislative amendments that have been recently adopted in the Russian Federation, the so-called ‘Yarovaya’ law, the ‘fake news’ law and the ‘disrespect’ law. It explains the essence and problems of implementation of the above-mentioned legal instruments and assesses them from the human rights angle. It is established that the rather complex laws under analysis pose significant threats to the human rights and fundamental freedoms of individuals, including privacy, data protection and freedom of expression, and introduce other additional negative effects to the Russian society and economy. While in the adoption of such legislation it is crucial to give due weight to the involved interests, the used examples indicate that the State's interests seem to prevail at the cost of the rights and freedoms of those who need to be adequately protected.     

Media echoes: Systemic effects of news coverage

This paper examines the effect of massive media coverage on a judicial system by analyzing 3,453 felony cases tried over a 10-year period. The cases span five years preceding and five years following two heavily covered daycare child abuse trials in Miami, Florida. Significant case-processing shifts provide evidence of coverage “echo” effects, which have been hypothesized to exist in the literature but have not been established empirically. High-profile case publicity echoes are thought to reverberate through judicial systems and to condition them to process similarly charged but nonpublicized cases differently than they would have been processed otherwise. Because they affect nonpublicized low-profile cases, news media echoes expand the effects of news coverage on the judicial system far beyond single high-profile cases. Although a significant echo is found in this study, it does not extend to all possible processing effects. The need to empirically study other media echoes in other jurisdictions is indicated.     

The Media’s Coverage of Domestic Terrorism

Scholarly interest in terrorism has grown dramatically since September 11. One important line of inquiry within this body of research has been the media’s coverage of terrorism. Although there have been several important studies published on this topic, there has been little research examining media coverage of domestic terrorism. This study fills this gap by examining the media’s coverage of terrorism in the United States from 1980 until September 10, 2001. The analysis is based on a list of terrorist‐related incidents and New York Times articles pertaining to each incident. This study documents the amount and type of coverage received by domestic terrorism incidents, and identifies the variables influencing whether an incident is covered and how much space it receives. The results indicate that most terrorism incidents receive little or no coverage in the news, but a few cases are sensationalized in the press. There are several characteristics that consistently explain which incidents are covered and receive substantial news space. Incidents with casualties, linked to domestic terrorist groups, targeting airlines, or when hijacking is used as a tactic are significantly more likely to be covered and have more articles and words written about them. This study concludes with a discussion of the policy implications of these findings for the understanding of terrorism as a social problem.