反腐外部监督机制的比较与完善

随着世界各国反贪机构的建立,"谁来监督监督者"的问题已经成为各国政府和社会公众广泛关注的焦点。我国香港特别行政区廉政公署的外部社会监督制度和澳大利亚新南威尔士廉政公署的外部专门监督制度是解决上述难题的两种典型实践例证,二者各具特色,对于完善我国的人民监督员制度具有重要的借鉴和参考价值。     

Defying institutional failure: learning from the experiences of anti-corruption agencies in four Asian countries

This article compares the effectiveness of the anti-corruption agencies (ACAs) in four Asian countries: the Corrupt Practices Investigation Bureau (CPIB) in Singapore, the Independent Commission Against Corruption (ICAC) in Hong Kong, the National Counter Corruption Commission (NCCC) in Thailand, and the Korea Independent Commission Against Corruption (KICAC). The CPIB and ICAC are more effective than the NCCC and KICAC because of the political will of the governments in Singapore and Hong Kong and the more favourable policy contexts of these two city-states. The lack of political will in curbing corruption in Thailand and South Korea is reflected in the fact that the NCCC and KICAC are not as well staffed or funded than the CPIB and ICAC. Moreover, the KICAC is the weakest of the four ACAs as it does not have the power to investigate corruption cases. The policy contexts of Thailand and South Korea are less favourable because of their larger populations and land area, and lower GDP per capita. To avoid institutional failure, ACAs must be supported by their governments in terms of the provision of adequate personnel and budget. They must also be able to investigate all cases of corruption without any political interference. The example of the KICAC shows the futility of establishing an ACA without the ability to investigate corruption cases.     

From clean up to FICAC: Anti-corruption in Fiji’s post coup politics

The leaders of Fiji’s 2006 military coup launched a ‘cleanup campaign’ and set up an Independent Commission Against Corruption. So far it has brought court cases against about 24 people. Among them is the former Prime Minister, who was charged with corruption for his role in institutions designed to promote the economic interests of indigenous Fijians (who constitute about 56% of the population). The article considers what counts as ‘corruption’ in these Affirmative Action policies: a so-called ‘Agriculture Scam’, which distributed farm implements free to Fijian farmers; a company called Fijian Holdings, which received concessional finance from the government; and a Native Land Trust Board, which collects rent on behalf of indigenous landowners. It concludes that army and popular opinion in Fiji hold conceptions of corruption that are much broader than the offences set out in the country’s penal code, and which the new ICAC is attempting to enforce.     

Layers of decision: Linking social definitions of corruption and willingness to take action

The literature available about social definitions of corruption is surprisingly discrete from that which addresses the issue of whistleblowing or the reporting of crime and corruption. The current study, however, empirically links the two. A survey of more than 1300 public sector employees was undertaken to explore: i) how and why public sector employees define some behaviours as corrupt; ii) factors which may hinder public sector employees taking action about corruption which they may observe at work; and iii) the link between i) and ii). The study found that within the New South Wales (NSW) public sector, views about what constitutes corruption are diverse and that this has a significant, though not exclusive, impact upon the action respondents said they would take in response to workplace corruption. The study discusses other factors which also impact upon the stated decision not to take action about corruption and suggests some possible courses of action for addressing these factors.The research upon which this paper is based formed part of the research program of the Independent Commission Against Corruption.     

Robbery, recession and real wages in Hong Kong

Between 1965 and 1975 Hong Kong experienced a dramatic increase in reported crime. Criminologists have put forward two major explanations for this: 1) modernization (or convergence) theory, and 2) the alleged break-up of the police-triad (Chinese secret societies) alliance following the establishment of the Independent Commission Against Corruption. Data from the 1970s show a remarkably close relationship in Hong Kong between changes in real wages and robbery rates. In this paper we argue that declining wages are related to increased rates of such 'quick cash' crimes, particularly in societies lacking a safety net of unemployment benefits, universal health insurance and income security provisions. The results offer support for this alternative, but admittedly partial, explanation of Hong Kong's rising crime rate. This revised version was published online in July 2006 with corrections to the Cover Date.     

Engaged Elites Citizen Action and Institutional Attitudes in Commission Enforcement

The subject of this article is a classic one in European law and administration: the general powers of the Commission to take infringement proceedings against the Member States. The topic merits a basic reconsideration by reason of contemporary developments that put in question the role and nature of the process. Emphasis is laid on the challenges to an e´lite model of regulatory bargaining, in the form both of demands for citizen 'voice' and pressures for a firmer and more formal approach to Commission enforcement. The dynamic character of the process is seen in part to reflect different institutional attitudes, with particular attention being paid to the stance of the European Ombudsman. Practical proposals include a re-balancing of Commission procedures to improve the position of complainants, a central role for the principle of complementarity in terms of public and private legal action, and a creative application to the Commission of the disciplines of the New Public Management. A further aim of the article is to demonstrate the utility of socio-legal studies in European administrative law: for many years a retarded, insufficiently theorised discipline, with too narrow a court-oriented focus.     

论我国贿赂犯罪的立法对《联合国反腐败公约》的应对--以国际刑法的国内化为视角

在我国缔约的<联合国反腐败公约>中,贿赂犯罪的规定与我国现行刑法的规定是不同的.现行刑法与<联合国反腐败公约>的相关规定的差异主要表现在贿赂的范围、贿赂外国公职人员或者国际公共组织官员犯罪与受贿罪、行贿罪的构成要件三个方面.完善相应的现行刑法的规定,是我国必须履行的国际法义务,也是司法实践的需要.     

Private Security: Enforcing Corporate Security Policy Using Private Investigators

This article focuses on the use of private investigators as external agents, commissioned to enforce internal corporate security policy. After describing the sorts of services private investigators provide to industry and commerce and the legal contexts within which they operate, it considers private investigators as a form of secret police within private justice systems defined by companies. It considers the relationship between notions of public good and commercial expediency and raises important questions about the problem of controlling activities which are purposefully kept from legal scrutiny.     

Forensic investigation of peer-to-peer file sharing networks

The investigation of peer-to-peer (p2p) file sharing networks is now of critical interest to law enforcement. P2P networks are extensively used for sharing and distribution of contraband. We detail the functionality of two p2p protocols, Gnutella and BitTorrent, and describe the legal issues pertaining to investigating such networks. We present an analysis of the protocols focused on the items of particular interest to investigators, such as the value of evidence given its provenance on the network. We also report our development of RoundUp, a tool for Gnutella investigations that follows the principles and techniques we detail for networking investigations. RoundUp has experienced rapid acceptance and deployment: it is currently used by 52 Internet Crimes Against Children (ICAC) Task Forces, who each share data from investigations in a central database. Using RoundUp, since October 2009, over 300,000 unique installations of Gnutella have been observed by law enforcement sharing known contraband in the the U.S. Using leads and evidence from RoundUp, a total of 558 search warrants have been issued and executed during that time.     

试论独立学院的法律属性和特征

独立学院是我国在上世纪末出现的高等教育的一种新形式。其法律性质属于法人型的民办非企业单位,具有通过协议方式设立、多元投资主体、同时兼具"公益性"和"营利性"成分、按民办机制运行以及是一种探索性的办学形式等特征。     

Crimes Against Caring: Exploring the Risk of Secondary Traumatic Stress,Burnout, and Compassion Satisfaction Among Child Exploitation Investigators

Secondary traumatic stress (STS) and burnout are debilitating occupational hazards that inhibit helping professional’s overall well-being. Much of the extant scholarship on this topic has focused on mental health and child welfare workers and not law enforcement officials who investigate Internet child exploitation. This study used data from 433 Internet Crimes Against Children (ICAC) Task Force personnel to explore the impact of individual and work-related factors associated with the risk of STS, burnout, and compassion satisfaction. Findings indicated that nearly one in four ICAC personnel exhibited low compassion satisfaction and high levels of STS and burnout. Individual-level protective factors for increasing compassion satisfaction and mitigating symptoms of STS and burnout included having a strong social support system outside of work and the frequent use of positive coping mechanisms. Work-related risk factors such as frequent indirect exposure to disturbing materials, low organizational support, and frequently feeling overwhelmed at work were all associated with higher STS and burnout and lower levels of compassion satisfaction. Policy implications and future avenues of research are discussed.     

Governance, accountability and neighbourhood policing in Northern Ireland: analysing the role of public meetings

In Northern Ireland??s move from conflict to peace, policing has remained close to the top of the political agenda. As part of the peace process, the Independent Commission on Policing (ICP) reported in 1999, and since its publication policing structures in Northern Ireland have undergone considerable reform. One of the threads of the ICP was to introduce a more nodal or networked approach to the delivery of policing that included the establishment of partnership policing structures. Against this backdrop, this article evaluates the use of the recently established Partners and Communities Together (PACT) public meetings in their role as a tool in re-shaping the parameters police accountability in Northern Ireland. The model is explicitly promoted as fostering a more nodal approach to local police decision making by engaging with a more diverse range of groups and harnessing the knowledge of local agencies to solve crime and disorder problems. Therefore, enhancing the accountability and legitimacy of the PSNI at the local level. In these contexts, the article utilises data taken from fieldwork undertaken at these public meetings and critically considers their role as forums where communities bring low level disorder issues that are affecting their neighbourhood to the attention of the PSNI, and whether they help solve these issues in partnership. The article therefore offers an examination of the role of public meetings and the PACT model itself.     

Public procurement as a means to achieving social gains – progress and challenges in European legislation and standards for accessible information and communication technology

This article explores the European Commission goal of improving the quality and level of accessibility in mainstream information and communication technology (ICT) goods and services available in Member States through the use of public procurement legislation and performance standards. Over the past two decades, the Commission has encouraged Member States to adopt common requirements for accessibility and to strengthen efforts to use these requirements in public procurement. In the absence of significant improvements in the level of accessibility over this time, the Commission has more recently committed to bringing forward legislative proposals to harmonize the accessibility requirements used by Member States. A new procurement directive package contains stronger obligations on public bodies to include accessibility as mandatory requirements in Technical Specifications. In parallel to this, a standardization mandate by the Commission to the European Standards Organizations (ESOs) concluded in March 2014 with the publication of the first European standard on ICT accessibility. In light of these developments, this article analyses the trajectory of European policy in the field of accessibility over the last two decades, and the interplay between European public procurement, standardization and law. It examines how far these developments have succeeded in bringing into being a public procurement eco-system that will nudge the market in Europe to producing affordable and accessible ICT products and services for persons with disabilities.     

国际刑事司法协助制度的若干新发展

《联合国打击跨国有组织犯罪公约》和《联合国反腐败公约》对国际刑事司法协助制度的新近发展作出了一定程度的总结,特别是确立了以追缴被非法转移的犯罪所得或收益为中心的司法协助新体系,放宽了双重犯罪原则对非强制性司法协助活动的限制作用,全面推广司法协助"中央机关"的联系机制,同时,倡导各国在条件允许的情况下采纳远程视频听证和联合调查的取证新方式。这些发展所涉及的一些新规则值得加以深入研究。     

Factors affecting likelihood of hiring private investigators (PI): Citizens' traits and attitudes toward police and PI

The aim of this study is to identify factors affecting citizens' likelihood of hiring private investigators (PI) for resolving their criminal and/or civil matters. Limited research has been conducted to investigate factors relevant to private investigators, but none of prior studies have studied citizens' characteristics and attitudes toward police and PI in this regard. To fill the void of the literature, this study utilized data collected from 225 Korean citizens. Factors examined include citizens' demographics, desire for personalized justice, attitudes toward PI's investigation, fear of crime, and attitudes toward public police. Findings indicate that citizens' desire for personalized justice was the most significant factor affecting likelihood of hiring PI for different types of cases. Results of the finding also showed that citizen's satisfaction with police work was negatively related with likelihood of hiring PIs for their criminal and/or civil cases. Based on results, policy implications for law enforcement were discussed.     

论独立规制机构：制度成因与法理要件

以美国《州际商务法》和州际商业委员会为肇始,独立规制机构行使准立法权、行政权和准司法权等产业规制权限,成为国家权力体系的重要组成部分。独立规制机构的产生具有经济、政治和道德等三个方面的成因。独立规制机构的法理要件包括独立意志和独立财产等两个主要方面。     

位置何以成为隐私?——大数据时代位置信息的法律保护

在数据这一新型生产要素中,位置数据的应用 日益广泛,不仅"基于位置的服务"雨后春笋般涌现,政府也基于位置数据创新社会治理方式、辅助案件侦破.然而,位置数据获取技术的进步及智能手机(作为现代最主要的定位工具)的普及,使得公民私密生活受到无处不在的位置监控威胁.位置信息的敏感性、位置获取技术的侵入性、公民对位置信息的隐私期...     

Competition policy: consequences of restrictive trade practices and price-fixing provisions for medical practitioners in Australia and New Zealand

Competition laws have only applied to many participants in the health care industry in Australia and New Zealand since the mid 1990s. Since then, the Australian Competition and Consumer Commission has considered a number of applications by medical practitioner associations and private hospitals to authorise potentially anti-competitive conduct, while the New Zealand Commerce Commission has successfully prosecuted a group of ophthalmologists. Amongst medical practitioners, however, there is still confusion and misunderstanding concerning the type of conduct caught by the Australian Trade Practices Act 1974 (Cth) and the New Zealand Commerce Act 1986 (NZ). This is of serious concern given the substantial penalties associated with price-fixing and restrictive trade practices. This article examines the provisions of these Acts most relevant to medical practitioners as well as a number of determinations and judicial decisions. To provide practical assistance to medical practitioners, the key lessons are extracted.     

Anti-SLAPP Law Reform in Australia

The last 20 years has seen a growth in litigation against public participation in Australia and a broadening of the mechanisms used. Following changes to the defamation laws in 2005, commercial torts are increasingly being used against critics and protest groups. Australia's highest profile example, the so-called 'Gunns 20' case, brought the problems of such litigation into the public realm and provided a major impetus for law reform. One Australian jurisdiction has now adopted limited anti-Strategic Litigation Against Public Participation (SLAPP) legislation and SLAPPs are being raised in the context of national debates over a Human Rights Act. However, comprehensive anti-SLAPP law reform is still some way off.     

Effective use of forensic science in volume crime investigations: Identifying recurring themes in the literature

New scientific, technological and legal developments, particularly the introduction of national databases for DNA and fingerprints, have led to increased use of forensic science in the investigation of crime. There is an assumption, and in some instances specific assertions, that such developments bring improvements either in broad criminal justice terms or more narrowly in terms of economic or practical efficiencies. The underlying presumption is that the new technological opportunities will be understood and effectively implemented. This research investigates whether such increases in activity have also been accompanied by improvements in the effective use of forensic science. A systematic review of thirty-six reports published (predominantly in England and Wales) since the 1980s, which have considered the use of forensic science in the investigation of volume crimes, was carried out. These reports have identified a number of recurrent themes that influenced how effectively forensic science was used in investigations. The themes identified included forensic knowledge and training of investigators, communication and information exchange between specialists and investigators, timeliness of forensic results, interagency relationships and deployment of crime scene examiner resources. The research findings suggest that these factors continue to hinder the effective use of forensic science despite technological advances and this paper considers their potential causes.