我国诱惑侦查的法治化思考

诱惑侦查作为应对新型犯罪的有力手段，在我国侦查实践中被广泛的使用，但相应的立法规范却非常缺失，因此，带来一系列的问题。基于法的价值分析，诱惑侦查有确立的必要性，我国应当尽快立法完善诱惑侦查制度。     

诱惑侦查的合法性及其证明

在司法实践中,诱惑侦查的合法性是一个十分突出的问题。借鉴国外的理论与实践,我国应当以诱惑侦查的基本分类来界定其合法性。同时,为了便于评判、证明诱惑侦查的合法性,我国还应当确立合法性诱惑侦查的具体标准和诱惑侦查人员出庭作证制度。     

浅议诱惑侦查

诱惑侦查是一种特殊的侦查方式,在世界范围内已得到许多国家的立法认可.我国在立法上没有对其作出规定,但在实际侦查中已有应用.尽管学界对诱惑侦查的合法性存在较大争议,但是基于冲破侦查"瓶颈"的需要,再加之诱惑侦查的实施具有法律容许性,如能够对诱惑侦查在法律上予以规制,那么,诱惑侦查必将对收集犯罪证据、控制犯罪起到关键性作用.     

走私犯罪与诱惑侦查

诱惑侦查是当今世界许多国家侦查走私犯罪的重要措施和手段,我国也在不同程度地适用这一有效方法。由于缺乏必要的规范和指导,实践中存在不少问题,影响了其效能的充分发挥,也极易侵害公民的合法权益。鉴此,本文分析了走私犯罪案件运用诱惑侦查的条件,提出了走私犯罪案件诱惑侦查中诱饵的设计方案,以及走私犯罪案件诱惑侦查的策略和方法,以期能对我国当前的缉私实践提供借鉴。     

诱惑侦查合法性判断标准之建构——美国的经验与启示

诱惑侦查是一把双刃剑,用之不当,可能侵犯公民的合法权益。为限制诱惑侦查的负面效应,应当明确诱惑侦查合法性的判断标准。美国刑法通过承认警察圈套辩护来区分合法的诱惑侦查和非法的诱惑侦查。关于警察圈套的成立标准,理论上有客观标准与主观标准之争,前者关注引诱行为的内容和性质,后者聚焦于被引诱者的主观可责性。从人类的认识实践出发,二者并非对立关系,而是相互依存的关系。借鉴美国的理论与实务,我国应兼采客观标准与主观标准之长,采用"分离式混合"标准来认定诱惑侦查的合法性,禁止犯意引诱型诱惑侦查,严格限制引诱程度和诱惑侦查的适用范围。     

非法买卖枪支案件之诱惑侦查

诱惑侦查是当今世界许多国家侦查非法买卖枪支案件的重要措施和手段 ,我国也在不同程度地适用这一有效方法。由于缺乏必要的指导 ,实践中存在不少问题 ,影响了其效能的充分发挥 ,也极易侵害公民合法权益。鉴于此 ,本文分析了非法买卖枪支案件运用诱惑侦查的条件 ,提出了非法买卖枪支犯罪案件诱惑侦查中诱饵的设计方案 ,以及非法买卖枪支犯罪案件诱惑侦查的策略和方法 ,以期能对我国当前的缉枪实践提供理论指导。     

论我国诱惑侦查制度的法治化

作为主动型侦查手段的一种特殊形式,诱惑侦查在打击犯罪,维护社会秩序方面具有较高的效能,然而我国侦查机关在运用这一手段时却存在着诸多混乱的情况。这种局面与我国试图实现“依法治国,建设社会主义法治国家”的宏伟目标是相悖的。在侦查程序日益强调人权保障的今天,对我国诱惑侦查制度进行法律规制无疑是一项重要的课题。     

论抢劫案件之诱惑侦查

基于抢劫案件之基本特点 ,运用诱惑侦查手段是提高其侦破效率的关键。适用诱惑侦查的抢劫案件应有其特定的范围 ,并须是系列抢劫案件 ,且在通过其他手段无法发现犯罪嫌疑人线索时才允许采用。侦查诱饵的设置应考虑被害人角色扮演、抢劫目的物或随身携带物特征、适合抢劫行为的时空环境等三项因素。运用诱惑侦查手段的主要目的在于发现、确定和缉捕犯罪分子 ,终止系列抢劫行为 ,以此为基准 ,可以从行动方案的拟定、化装守候行动的展开和适时抓捕行动的实施等构建诱惑侦查的方略。     

刍议被动侦查原则

被动侦查原则衍生自侦查行为在职权应答上的被动性或回应性。被动侦查原则包含四项要义,即因果关系上的时序性、程序启动上的被动性、措施运用上的比例性以及犯意诱惑上的禁止性。坚持被动侦查不仅是侦查活动一般认知规律的体现和刑事司法"最后手段性"的基本要求,而且是防止权力滥用、保障人权及侦查资源合理配置使然。在侦查实践中应当坚持:以被动侦查为主,主动侦查为辅,以实现权利保障和打击犯罪的价值平衡;以情报主导侦查,以便于在基层情报网络的基础上争取侦查破案的主动权。     

侦查破案论

侦查破案概念应当从行为、认知、结果等3个角度进行界定。破案条件规定应当从侦查措施及 强制措施采取的合理性根据维度进行理解,即有关侦查措施和强制措施只有在案件事实调查、证据收集以及 犯罪嫌疑人确定程度等方面达到一定标准时方可以采取。破案的思维方法包括经验方法和逻辑方法两类。 破案的行为方法主要包括巡逻发现、物证分析、重点排查、秘密侦查、诱惑侦查等5种基本类型。     

Populism: a deflationary view

This paper takes a critical, synoptic view of the current upsurge of populism. Populism, it is argued, has long been a feature of liberal democracies in so far as claims are made for democracy to be as directly expressive as possible of the will of its subjects. Yet populisms are hybrid in form and parasitic on existing political arrangements. What unites them is more to do with what they oppose than what they espouse. Above all, it is the norms of liberalism that are brought into question by populist proponents of direct democracy with their characteristic hostility towards elites, experts and the so-called establishment. In so far as all populisms can be dangerous this lies in the degree to which they oppose the existing norms of liberalism and seek to undermine its moderating institutions. Rather than relying on generic theories of populism to explain contemporary developments, what needs investigation is the degree to which particular populisms prioritize fear over judgement, unqualified assertion over reasoned deliberation and resentment over the moderation of power.     

THE INTER-STATE COMMISSION*

Abstract: The Inter-State Commission (ISC), although required by Australia's Constitution, has been in existence from 1913 to 1920 only. In 1975 the Labor government introduced a bill to set up the Commission. The bill was passed in a heavily amended form, but the legislation was not proclaimed by the incoming coalition government. A brief history of the "first" ISC raises the question of whether the High Court would ever have accepted the regulatory powers that the Labor government wished to invest in the late Commission. The ISC envisaged by the Labor government's bill would have had strong powers of regulation, arbitration and investigation over interstate and overseas transport. The Senate left it with weakened investigative powers only. Our Federal system encourages many government practices which are not in the interests of the community as a whole. However, while the ISC's role in curbing these practices would have been beneficial, the States have shown themselves too powerful politically to accept such policing, even if the High Court had allowed the ISC to do so. The ISC as conceived by Labor's bill would not have been politically viable, but the ISC as provided for in the Act would be worth setting up, as it would have several advantages over existing investigative mechanisms. It would have more experience and competence than ad hoc inquiries, and its continued existence would make it difficult to shelve its reports. Its statutory basis, broader terms of reference and its ability to force organizations to divulge information would all serve to make it a better investigative body than the Bureau of Transport Economics.     

Political Marketing

Abstract

This paper examines the emerging practices and literature of what has been termed ‘political marketing.’ It attempts, through an investigation of underlying theoretical frameworks, to shed light on the impact and implications of this ‘new’ phenomenon. Specifically, it examines whether the above mentioned practices can rightfully be seen as transforming political parties into professional market-oriented organizations, as has been claimed in some recent academic studies. It does so by introducing and examining an increasingly strong-positioned marketing paradigm, services/relationship marketing. This paradigm's focus on the organizational perspective of marketing is discussed as is its applicability to analysis of politics and democracy. Furthermore the paper links this discussion to the wider concern over the ‘crisis in democracy’ resulting from a decline in civic engagement, decreasing voter turnouts and declining party-membership.     

浅议涉税犯罪案件的特点及讯问对策

涉税犯罪是对我国刑事法律所规定的各种危害国家税收制度犯罪行为的统称。当前,这类犯罪在经济犯罪总量中占有相当的份额,是公安机关经济侦查部门面临的亟待研究的现实课题。本文在分析涉税犯罪案件一般特点和目前呈现出的新特点的基础上,提出了有针对性的讯问对策。     

How ‘Universal’ Is the United Nations’ Universal Periodic Review Process? An Examination of the Discussions Held on Polygamy

In 2006, United Nations Human Rights Council was tasked to establish a new human rights monitoring mechanism: Universal Periodic Review process. The objective of this process is to promote and protect the universality of all human rights issues and concerns via a dialogical peer review process. The primary aim of this investigation is to ask the following question: has this claim of promoting and protecting the universality of the human rights been met, or challenged, during state reviews in the UPR process? The issue of polygamy has been selected as the focus for this investigation to be used, primarily, as a tool to undertake an in-depth analysis of the discussions held during state reviews in the review process. In addition, this paper will employ scholarly debates between universalism and cultural relativism, as well as the sophisticated and nuanced approaches that fall in between the polarised opposites, to analyse the discussions held on human rights during state reviews. Ultimately, the findings and discussion of this investigation will provide a unique and valuable insight to the work and operation of the UPR process, so far.     

国际刑事法院侦查程序初探

百年来,为惩治战犯、实现和平,国际社会成立了五大国际刑事法院,构建了新的法律体系。作为完整的诉讼机构,国际刑事法院设置了国际检察官与案件调查制度,产生了新型的国际侦查程序。国际侦查程序主要包括调查的启动、调查的实施、结果的处分、程序的监督等方面内容。探析国际刑事法院侦查程序对于完善国际刑事法理论与实践具有重大意义。     

The Lega Nord Back in Government

Following the 2008 general election, the Italian regionalist populist party Lega Nord returned to government as part of a centre-right coalition led by Silvio Berlusconi. Since then, the party has been able to thrive thanks to its holding of key ministries and its consolidation of ‘issue ownership’ over its main themes of federal reform and immigration/law and order. In this period, it has also made major gains in the 2009 European Parliament and 2010 regional elections. This article analyses the Lega's success since 2008 by considering the actions of the party (in particular the legislation it has sponsored and the narrative offered of its time in government) as well as the reactions of mid-ranking leaders and activists. The authors argue that, contrary to the expectations of scholars, populists serving as junior coalition partners are not necessarily destined to tame their rhetoric, face splits or see their electoral support decline. On the contrary, by focusing on selected themes and policies and adopting effective communication strategies, the Lega has continued to enjoy electoral success and seen its membership grow. The article concludes, therefore, that claims about populists being inherently unable to survive in government and enjoy success seem to have been premature.     

On a Contradiction in Mill's Argument for Liberty

Mill took very seriously the warning example from China that even a civilised country could stagnate and become a backwater of world development. Although certain sections of Mill's On Liberty have been scrutinised, evaluated and debated with intense care, this, his most fundamental warning to his own society – that it was systematically undermining its own pre-eminence – has stimulated relatively little investigation. This article notes Mill's concern with social stagnation and suggests that, even in terms of his own presentation of the balance of social forces, his proposed countermeasures of 'eccentricity' and 'refusal to bend the knee' are futile gestures quite insufficient to combat the tendencies he outlined.     

公开原则在侦查中的适用

我国在传统的侦查活动中,一直反对将公开原则作为侦查程序的价值取向之一.侦查机关抵触的原因主要是:一旦将侦查活动公之于众,将会极大地影响到侦查活动的顺利进行,并且在各方力量的监督下,侦查工作的压力将大大增强.而增加司法过程的透明度,又是法治国家必然的趁势,因此,侦查活动的合理公开,是未来我国侦查改革的重要内容.侦查合理公开,主要是指向当事人公开和社会公开.在侦查公开的方式上,可以考虑侦查公告、新闻发布会、错案质询和公告等.     

The American Right and Israel

In recent years there has been considerable controversy over the relationship between the United States and Israel. Neoconservatives and Christian Zionists have been vociferous in support of the relationship, while John Mearsheimer and other critics have questioned what America gains from such an alliance. While the G. W. Bush administration has often been portrayed as uncritically favouring Israel, it was the subject of criticism on the issue from within the American Right. Now it is the Obama administration which is drawing fire for its stance on Israel.