对侦查讯问合法性、公正性的思考

侦查讯问的合法性,是指侦查讯问活动按照刑事诉讼法对侦查讯问的主体、讯问的方式、讯问的地点、讯问的顺序、讯问时应当保障的犯罪嫌疑人的权利的要求来开展;侦查讯问的公正性,是指侦查讯问的实体内容和讯问程序过程要体现公平、公道、合理、正义等价值目标。但我国现阶段的侦查讯问仍存在着不公正性的问题,要克服这种不公正性,可以确立有限沉默权的原则,完善立法,提高执法理念。     

我国侦查讯问制度存在的问题与完善

作为一种最常见的侦查措施之一的讯问犯罪嫌疑人程序,是侦查活动的必经程序,在侦查活动中具有十分重要的意义.侦查讯问虽然是侦查机关侦破案件最有效的侦查手段,但是在保障犯罪嫌疑人人权等方面一直受到大家的诟病.侦查讯问过程中对犯罪嫌疑人的人权保障与现代法制对人权保障的要求还有很大差距,我国侦查讯问过程中现存问题的根源很大程度上是由于法律规定本身存在不足,比如法律没有规定犯罪嫌疑人的无沉默权问题、刑讯逼供问题,从而也导致了在实践过程中出现了许多问题.因此,我们应当在法律层面上对侦查讯问制度进行完善,同时也应通过引导人们的法制观念和侦查讯问部门的执法理念来解决我国侦查讯问制度中存在的问题.     

侦查讯问改革与发展构想

侦查讯问程序的改革与完善 ,是侦查程序改革的一个重点 ,也可以说是整个审前程序乃至刑事司法改革的一个重点。侦查讯问活动的改革与发展必须与侦查讯问程序的改革与完善相同步。为此 ,目前应该重点明确以下几个主要问题 :首先 ,必须充分认识侦查讯问程序改革与完善的必要性 ;其次 ,必须把握正确方向 ,循序渐进地推进侦查讯问程序的改革与完善 ;再次 ,必须正确认识和理解侦查讯问程序改革基本完成之后侦查讯问的功能定位 ;最后 ,必须提升侦查讯问的策略与方法 ,确保侦查讯问应有功能的充分发挥。     

浅析侦查讯问笔录制作的技巧及应用

作为每案必用、必经过的侦查措施和程序——侦查讯问笔录,在我国《刑事诉讼法》中有明确的规定,是侦查工作的重要环节之一,是记录犯罪事实、固定证据的重要依据,凡是讯问活动都应当制作笔录,有录音、录像的也不能代替。一、侦查讯问笔录制作存在的问题第一,记录告知犯罪嫌疑人事项不全面。讯问记录人员在记录前,只写介绍身份情况、说明谈话要求或     

法治视野下的侦查讯问程序

本文以阐述传统思维下的侦查讯问的口供中心主义为基点,对造成口供中心主义的根源进行了系统的分析和论证,指出传统侦查讯问程序是与现代法治理念相背离的,于当今法治社会的人权保障和程序正义价值理论是格格不入的。以思辨式的思维提出了构建法治视野下的侦查讯问程序,并就讯问的法治化要素进行了详尽的阐述,以期能给我国侦查讯问程序的革命带来灵感。     

论刑事侦查中讯问技巧

讯问的技巧是侦查人员为了进一步了解案情,掌握犯罪线索和收集充分可靠证据所直接实施的讯问对策手段,是侦查部门重要的侦查手段和方法之一.本文认为侦查机关及其侦查人员应当转变执法观念,强化法治意识,增强侦查机关讯问犯罪嫌疑人时的业务能力,努力学习侦查讯问技巧,强化讯问技巧在讯问中的运用,充分发挥讯问技巧的功能和作用,来应对案件侦查中出现的困难.     

国外侦查讯问制度之比较

侦查讯问是案件侦查和刑事诉讼中的常用措施,各国由于价值观念、历史文化传统的差异,侦查讯问制度的内容不尽相同。具体差异主要体现在讯问主体、对象、程序、方法、时间等若干方面。     

浅析我国刑事侦查讯问制度的完善

侦查讯问作为一项侦查措施,在刑事诉讼中有着重要的作用。但由于我国特殊的诉讼制度构造及特殊的经济、文化背景使得其对犯罪嫌疑人的非法讯问现象多有发生,近些年的一些重大错案的发生均源于不正当的讯问。讯问是审前程序尤其是侦查程序中用以获取犯罪证据或其他涉案线索,查明案件事实的一种重要方式。在肯定讯问正当性的同时,以程序规范刑事侦查讯问制度应成为当前改革刑事讯问制度的必由之路。     

程序公正价值的缺失——我国侦查讯问程序的反思

侦查讯问程序的价值包括内在价值和外在价值,即程序公正和实体公正。本文通过分析我国刑事侦查讯问程序公正价值的缺失,提出完善我国侦查讯问程序的具体方案,注入程序公正因素,以契合现代法治国家理念。     

我国侦查讯问制度的设计缺陷及其完善

我国刑事诉讼法对侦查讯问程序的规制存在着诸多缺陷,其主要表现为侦查讯问程序的发动具有随意性,侦查讯问过程具有秘密性,“如实回答”一条的规定在实践中遇到了很多问题等。我们必须本着保障人权与提高效率并重的原则完善我国的侦查讯问程序,对作为讯问对象的嫌疑人的范围作出界定,同时设立犯罪嫌疑人的主张责任以维持二者权利义务的平衡。通过规定讯问时律师的在场权、举证责任倒置制度来有效地遏制刑讯逼供问题。     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

Immigration,intermarriage and the changing face of Europe in the post war period

In this article we compare the propensity to intermarry of various migrant groups and their children who settled in Germany, France, England, Belgium and the Netherlands in the post-war period, using a wide range of available statistical data. We try to explain different intermarriage patterns within the framework of Alba and Nee's assimilation theory and pay special attention to the role of religion, colour and colonial background. We therefore compare colonial with non colonial migrants and within these categories between groups with ‘European’ (Christian) and non-European (Islam, Hinduism) religions. First of all, religion appears to be an important variable. Migrants whose faith has no tradition in Western Europe intermarry at a much lower rate than those whose religious backgrounds correspond with those that are common in the country of settlement. The rate of ethnic endogamous marriages in Western Europe are highest in Hindu and Muslim communities, often regardless if they came as guest workers or colonial migrants. Whereas differences in religion diminish the propensity to intermarry, colour or ‘racial’ differences on the other hand seem to be less important. This is largely explained by the pre-migration socialisation. Furthermore, the paper argues that the attention to institutions, as rightly advocated by Richard Alba and Victor Nee, needs a more refined and layered elaboration. Institutions, often as barriers to intermarriage, do not only emanate from the receiving society, but also—be it less formalized—within migrant communities. Especially religions and family systems, but also organized nationalist feelings, can have a profound influence on how migrants think about endogamy. Finally, strong pressures to assimilate, often through institutionalized forms of discrimination and stigmatization, not only produce isolation and frustrate assimilation (with resulting low intermarriage rates), but can also stimulate assimilation by 'passing' mechanisms. These factors, together with a more comparative perspective, are not completely ignored in the new assimilation theory, but—as this study of Western European intermarriage patterns stresses—deserve to be included more systematically in historical and social scientist analyses.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.     

Illumination,Imagination, Creativity: Rājaśekhara,Kuntaka, and Jagannātha on <Emphasis Type="Italic">Pratibhā</Emphasis>

Sanskrit poeticians make the visionary faculty of pratibhā a necessary part of the professional poet’s make-up. The term has a pre-history in Bhartṛhari’s linguistic metaphysics, where it is used to explain the unitary perception of meaning. This essay examines the relation between pratibhā and possible theories of the imagination, with a focus on three unusual theoreticians—Rājaśekhara, Kuntaka, and Jagannātha Paṇḍita. Rājaśekhara offers an analysis of pratibhā that is heavily interactive, requiring the discerning presence of the bhāvaka listener or critic; he also positions pratibhā in relation to Bildung (vyutpatti) and practice. For Kuntaka, pratibhā, never an ex nihilo creation by a poet, serves as the basis for the peculiar forms of intensified insight and experience that constitute poetry; these may also involve the creative scrambling and re-articulation of the object in terms of its systemic composition. At times, Kuntaka’s pratibhā comes close to a strong notion of imaginative process. But the full-fledged thematization of the imagination, and of pratibhā as its support and mechanism, is best seen in the seventeenth-century debates preserved for us by Jagannātha. A link is suggested between the discourse of poetic imagination in Jagannātha and similar themes that turn up in Indo-Persian poets such as Bedil.     

Preventing Homelessness for System‐Involved Youth

Too many youth and young adults find themselves on the streets, couch‐surfing with friends, in emergency shelters or worse, after exiting the child welfare and juvenile justice systems. In some circumstances, youth have had court hearings until their exit from the legal system, but those hearings have not focused on long‐range plans of youth and emergencies youth may encounter. In other circumstances, there has been little or no planning prior to discharge, especially for young people who leave the juvenile justice system. Courts can and should prevent, alleviate or end youth homelessness for youth who appear before them through strategies that are enumerated in the recently‐passed NCJFCJ resolution. This article expounds on three of these strategies – coordinating transition and re‐entry plans, insisting on effective legal representation of youth, and utilizing sound judicial leadership. It also describes the concurrent efforts of the Coalition for Juvenile Justice and the American Bar Association's Homeless Youth Legal Network to remove legal barriers and improve outcomes for youth and young adults experiencing homelessness.     

Best practices for structuring a family court parenting plan evaluation under the 2022 AFCC Guidelines

Evaluation appointment orders provide enforceable scaffolding for conduct of family court parenting plan evaluations, and use of the evaluator's reports, feedback, file, and testimony. Unlike a contract, a stipulated or adjudicated appointment order is directly enforceable by the family court. It unambiguously positions the evaluator as the family court's appointee – answerable directly to the court and, in some jurisdictions, protected by quasi-judicial immunity from damages claims. A well-crafted appointment order governs the roles and expectations of the court, the evaluator, the parties, the lawyers, and the collateral witnesses. An appointment order mandates the legal duties, rights, powers, and responsibilities of the professionals, the parties, and the collateral witnesses. At minimum, an appointment order articulates the legal basis for the appointment, the purpose and scope of the evaluation, compensation of evaluator, and the duty of the parties to participate in the process. A written evaluation protocol or procedures statement discloses in advance the methods of investigation and assessment that the evaluator intends to use. Together, the appointment order and written protocol help the evaluator, lawyers, parents, and judge manage the complexity of the evaluation process.     

Monks Who Have Sex: Pārājika Penance in Indian Buddhist Monasticisms

In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda) contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.

Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)

     

What similes in Sāṃkhya do: a comparison of the similes in the Sāṃkhya texts in the Mahābhārata, the Sāṃkhyakārikā and the Sāṃkhyasūtra

In Sāṃkhya similes are an important means to communicate basic philosophical teachings. In the texts similes are frequently used, especially in the Sāṃkhya passages in the Mahābhārata, in the Sāṃkhyakārikā and in the Sāṃkhyasūtra. This paper compares the similes in these three texts and analyses changes in the philosophy as revealed in the similes. A comparison of the similes of Sāṃkhya texts produced over more than one thousand years reveals changes in the emphasis in this philosophical system. The purpose of the similes in the Sāṃkhya passages of the Mahābhārata is to produce an intuitive understanding of the separateness of puruṣa and prakṛti. The similes are designed to lead the listener to understand this basic dualism. In the Sāṃkhyakārikā the most difficult issues are the relationship between prakṛti and puruṣa and the idea of prakṛti working for the salvation of puruṣa. One whole chapter of the Sāṃkhyasūtra is devoted to similes.