论单位犯罪的形态结构——兼论单位与单位成员责任分离论

现行单位刑事责任的立法规定是以单位犯罪是一个犯罪行为为理论前提的,因而存在诸多理不断、剪还乱的理论死结。为此,有必要重新审视单位犯罪的形态结构,理顺犯罪单位与犯罪单位成员之间的罪责关系。通常所说的"单位犯罪"实是一种特殊的犯罪聚合体,具体包括两个犯罪行为:一个是客观实在的由单位成员实施的自然人犯罪;另一个是法律拟制的单位犯罪。即源初意义上的"单位犯罪"。这两个犯罪行为因"为单位谋利"的单位成员行为在法律评价上的双重性而被立法者人为地聚合在一起,但单位责任和单位成员责任在构成和追诉上应当是各自独立和分离的,二者并不牵涉或互为前提。     

Combating Child Sex Tourism in South‐east Asia: Law Enforcement Cooperation and Civil Society Partnerships

Many states have enacted extra‐territorial child sex tourism (CST) offences. Despite the existence of these offences, some states, including Australia and the United Kingdom, continue to privilege territorial competence as the basis of criminal jurisdiction. However, many destination countries for CST in South‐east Asia lack the capacity to support prosecutions in this crime. This article explores the utility of partnerships between local and international law enforcement agencies and NGOs to facilitate prosecution in the jurisdiction of the offence. Through a case study of Cambodia, the article argues that such partnership arrangements provide the resources and integration required to enable sexual offences against children, by foreign offenders, to be prosecuted. NGOs undertake complex strategies to address the immediate needs of exploited children, while seeking to maintain their capacity to influence government policy. The risks, challenges, and sustainability of such partnerships are discussed, along with wider implications for South‐east Asia.     

The development of a filter model for prioritising suspects in burglary offences

Abstract

This paper discusses the development of a filter model for prioritizing possible links in dwelling burglary. The filters utilize the central aspects of crime scene information that is available and accessible to investigators in burglary, namely geo-spatial, temporal, behavioural, and dwelling information. The proposed filters were analysed using a sample of 215 dwelling burglaries committed by 43 serial burglars (i.e. 5 offences each) in order to determine the sequence in which the filters should be considered in prioritizing possible linked offences. The results indicated that the following order (i.e. better performance to worse performance) was most effective at linking offences, utilizing: (1) geo-spatial information, (2) temporal aspects, (3) behavioural information and, lastly, (4) dwelling characteristics. Specifically, the results indicated that offences in close proximity to one another should be given priority. Further, any offence occurring within a 28-day span before or after the index offence should be given priority. The paper argues that behavioural and dwelling characteristics are less effective for linking than geo-spatial and temporal information because the former two aspects are influenced significantly by situational and contextual cues on offender decision-making.     

The Offence of Giving False Testimony under Solemn Declaration in the Rome Statute

As a preliminary matter, the article considers different legal regimes pertaining to the power of the international criminal tribunals to punish conduct that tends to impede or frustrate the good administration of justice, from Nuremberg to the UN Mechanism for International Criminal Tribunals. It further examines the actus reus and mens rea of the offence of giving false testimony under solemn declaration, pursuant to article 70(1)(a) of the Rome Statute. It separately evaluates whether materiality of the false testimony is a requisite legal element of this offence. In conclusion, the article observes that few offences are carried out with greater impunity in the international criminal proceedings, and cautions against a risk of routinisation of false testimony due to a deliberate non-enforcement of its prohibition.     

Court outcomes among female juveniles with sexual offences

ABSTRACT

Female juveniles with sexual offences (FJSOs) are an understudied population. The current study compares FJSOs with their male counterparts and evaluates whether male and female juveniles with sexual offences from different family types have similar charges and court outcomes. Data were obtained from a statewide court dataset in Alabama from 2004 to 2014 (n?=?205 females, 2816 males). Participants were categorised by offence category, family type, and court outcome. Chi-square tests and hierarchical logistic regressions were conducted to test for differences in offence patterns and court outcomes by gender and family type, respectively. Females committed less severe offences and received less severe punishments for a given offence compared with males. Family type and two-way interactions between family type, gender, and offence severity played limited roles in offence patterns and in court sentencing. Disposition patterns in females point towards the feasibility of providing more services for all juveniles with sexual offences.     

Is overpunishment fairer than underpunishment? Perceptions of deviations from equity

Abstract

Three studies are presented which test hypotheses derived from Equity Theory, Prospect Theory and the principle of Diminishing Marginal Value with regard to preferences for overpunishment and underpunishment in the assignment of penalties to offences of varying severity. The first two studies showed that, with different subject samples, offences, and kinds of punishments, subjects indicated a marked preference for over-punishment rather than underpunishment, when both over punishment and under-punishment deviated from ideal, or equitable, punishment to the same degree. However, the effect was only apparent for serious offences. A third study showed that the overpunishment preference for a serious offence existed even when the overpunishment deviated 30% more from ideal punishment than underpunishment, but again no preference was shown' for the less serious offence. As the results cannot be readily explained in terms of any of the three explanatory principles, a possible explanation in terms of concept of negative reciprocity is advanced.     

Hate,Threats, and Violence. A Register Study of Persons Suspected of Hate Crime

This article focuses on individuals suspected of hate crimes with xenophobic, Islamophobic, and homophobic motives. The objective is to fill a gap in the knowledge left by existing research, which has primarily focused on victims and definitional problems. This article's genuine contribution to new research is the comparative perspective and the study of co-offending and specialization in offences for persons suspected for hate crimes. To find persons suspected for hate crimes, register data relating to hate-crime-motivated assault and unlawful threats/molestation offences from 2006 have been used. The study is based on a total of 1,910 offence reports together with information from the Registers of Suspected and Convicted Offenders for 558 persons suspected for hate crimes. Xenophobic hate crimes are over-represented in the material by comparison with homophobic and Islamophobic hate crimes. In the reports that have information about the relation between victim and perpetrators, it is more common for the perpetrators to be known than unknown to the victims. In cases where a suspected person has been identified, males are in a clear majority. Those suspected of homophobic hate crimes have the lowest mean age. Only a small number of offence reports include information on suspected co-offenders. Fifty-five per cent of the suspected people have prior registered convictions. It is very uncommon for them to be specialized in violent offences or unlawful threats/molestation, however. It is not possible to generalize the results to perpetrators of hate crimes, because 70% of the offence reports did not have information of suspected persons.     

PROTECTION OF MALE SEXUAL RIGHTS IN THE CRIME OF RAPE

Crimes relevant to sexual offence in the current Criminal Law of the PRC, such as the crime of rape, the crime of forcible molestation and humiliation of women, the crime of indecency with a child, establish a relatively close net for protecting female sexual rights. However, the protection of male sexual rights is surprisingly neglected or disregarded. In current China, sexual offences against males （including sexual offence against a male by male and sexual offence against a male by female） are getting worse. Unfortunately, male victims of sexual offences cannot seek for legal remedy due to the lack of legal provisions. In theory, the Criminal Law needs to bring in the protection of male sexual rights. This thesis will focus on the issue relevant to sexual offences against males on the crime of rape. The authors will present increasing evidence of sexual offences against males and explore the reasons. We will analyze the necessity of amending the provisions of the crime of rape based on theoretical and practical research, and learn from the advantages of legislations of different times and places in China and other countries. We will conclude with suggestions for amending the current Criminal Law about the crime of rape in order to fill up the gap in legal protection of male sexual rights in China.     

Balancing public health and practitioner accountability in cases of medical manslaughter: reconsidering the tests for criminal negligence-related offences in Australia after R v Patel

In 2010 Dr Jayant Patel was convicted of several offences on the basis of criminal negligence. Following the Queensland Court of Appeal's 2011 endorsement of the trial judge's decision, the case provides a timely opportunity to review prosecutions for medical negligence criminal offences throughout Australia and to critically examine the tests in assessing whether the balance has been correctly struck. The author argues that the thresholds required for prosecutions for criminal negligence for medical manslaughter are problematic and unduly onerous, and do not adequately strike the balance between the utilitarian value in health care and patient safety, on the one hand, and practitioner accountability and deterrence, on the other. This article considers reforms to remedy the imbalance, including a reformulation of the Criminal Code (Qld) and common law thresholds, proposals for the enactment of a separate offence of criminally negligent manslaughter and the utilisation of corporate prosecutions for manslaughter liability to broaden accountability in health care and promote patient safety on a systemic level.     

Illegal access to information systems and the Directive 2013/40/EU

Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013, on attacks against information systems, came into force on 3 September 2013, replacing Council Framework Decision 2005/222/JHA. It maintains existing offences and criminalizes new activities such as illegal interception and the usage of certain tools for committing offences. The offence that is the focus of this article – illegal access to information systems – is set out in Article 3. It represents a change from the wording of Art 2 (2) of the Framework Decision 2005/222/JHA in that under Art 3 of the Directive the incrimination of illegal access to information systems now depends upon whether such access infringes a security measure. This paper provides an overview of the impetus for the introduction of cybercrime laws and analysis of the key provisions of the Directive before exploring whether the wording of Art 3 is a sensible legislative approach.     

Crime profiles and conditional release performance of psychopathic and non‐psychopathic sexual offenders

Purpose. This study investigated the influence of psychopathy and sex offender subtype on criminal history, probability of being granted conditional release, and performance while on conditional release in a diverse group of violent offenders. We predicted that psychopathic sexual offenders would be associated with relatively prolific violent and sexual offending, a high probability of successful conditional release applications despite their past behaviour (resulting from ‘putting on a good show’ in a parole hearing), and poor performance in the community. Methods. Information was gathered via a correctional file review of 310 Canadian male federal offenders. Offenders were categorized into groups based on their sexual offence history (non‐sex offender, rapist, child molester, or mixed rapist/molester) and Psychopathy Checklist – Revised (PCL‐R; Hare, 2003) ratings. Their offences (sexual, violent, or non‐violent) and their complete conditional release histories were coded. Results. Psychopathy was associated with more violent and non‐violent, but not sexual, offences. A significant interaction between psychopathy and offender subtype revealed that psychopathy was associated with a greater number of sex offences within child molesters. High‐psychopathy offenders (both sexual and non‐sexual offenders) were about 2.5 times more likely to be granted conditional release than non‐psychopathic offenders. Conclusions. Psychopathy is associated with more prolific sexual offending among child molesters and – despite their extensive criminal histories and high recidivism rate – a great proficiency in persuading parole boards to release them into the community. Specialized education and training in dealing with psychopathic offenders is urgently needed.     

Procedural law provisions of the council of Europe convention on cybercrime1

The Council of Europe Convention on Cybercrime is the first international treaty on crimes committed via the Internet and other computer networks. It aims principally at harmonising the domestic criminal law elements of offences and connected provisions in the area of cyber‐crime and setting up a fast and effective regime of international co‐operation. Considering the inadequacy of traditional investigative powers and the absence, in most countries, of specific procedural rules applicable in cyberspace, the Convention is also aiming at providing for the domestic criminal procedure law powers necessary for the investigation and prosecution of criminal offences that are likely to be committed via computer systems, as well as for any type of criminal investigation where it is necessary to collect information that exists in electronic form. These powers, some of which are particulary innovative, correspond to different objectives, such as compiling evidence, locating the source and identifying the perpetrator of an offence. However, they are all intended to enable computer data to be obtained or gathered in the context of ongoing criminal investigations, and do not have a proactive effect or scope. The Conventions fundamental premise is thus to recognise that digital data has a legal value in itself and probative force that is identical to that of material evidence existing in the non‐virtual world.     

Does punishment of minor sexual offences deter rapes? Longitudinal evidence from France

Using original French panel data, this paper investigates the relevance of the broken windows theory in case of an offence category featured by the absence of monetary benefits. Estimates from random and fixed effects models highlight the deterrent effect of sanctions for rapes and minor sexual offences. The enforcement activity of rapes is the most deterrent factor both for rapes and other sexual offences, compared with the rapes- and minor sexual offences-reducing impact of an increase in the enforcement activity for minor sexual offences. Our results cast doubt on the broken windows theory. From a normative perspective, it would be more efficient to deter the authors of rapes rather than those of less severe sexual offences.     

Punishing Organized Crime Leaders for the Crimes of their Subordinates

The intuition holding that an organized crime leader should be punished more severely than a subordinate who directly commits an offence is commonly reflected in legal literature. However, positing a direct relationship between the severity of punishment and the level of seniority within an organizational hierarchy represents a departure from a more general idea found in much of the substantive criminal law writings: that the severity of punishment increases the closer the proximity to the physical commission of the offence. This paper presents an analysis of the said intuition and attempts to ascertain its roots. Rejecting both retribution and deterrence theory as valid explanations, it will be inferred that the imposition of harsher punishment on organized crime leaders is properly based on the multiplicity of offences for which they are responsible, and not the nature of their involvement in any specific offence.     

Inexplicable wealth and illicit enrichment of public officials: A model draft that respects human rights in corruption cases

The employment of crimes of inexplicable wealth as an anti-corruption tool has been increasingly advocated in recent years. The United Nations Convention against Corruption calls for the creation of a crime of illicit enrichment. This paper seeks to evaluate the drafting of such crimes from human rights and criminal justice perspectives. The author considers the jurisprudence from the United States, Canada, United Kingdom and South Africa, as well as the European Court of Human Rights. The paper also evaluates the Hong Kong inexplicable wealth offence and subjects it to criticism in terms of the rights of defendants and the lack of clarity in drafting. The author concludes that there is no need for a specific crime of inexplicable wealth. A crime of corruption is perfectly adequate. All that is required is the use of a special rule of evidence which places the evidential burden upon the defendant. The use of a mandatory presumption of law is the most clear analytical method of drafting. This is consistent with human rights standards and common law jurisprudence. Finally, regulatory offences requiring proper financial record keeping and declarations of wealth should be created alongside the more serious corruption offence. These could impose strict liability. Wealth previously declared by public officials should not be presumed to be corrupt funds for the purposes of any corruption prosecution. This approach is consistent with the United Nations Convention Against Corruption and would represent an acceptable mode of implementing that treaty.     

A community forensic intellectual disability service: Twelve year follow up of referrals,analysis of referral patterns and assessment of harm reduction

Background. Previous reports on the outcome of services for offenders with developmental disabilities have found recidivism rates of between 40% and 70% with an elevated prevalence of sex offending, fire‐raising, and aggression. Studies have also reported that female offending rates in the intellectual disability population are broadly similar to those found in mainstream populations. All reports have been conducted on in‐patient or prison samples. The present report is of a community forensic intellectual disability service. Method. Two male cohorts of sex offenders (N = 121) and other types of offenders (N = 105) and female offenders (N = 21) are studied and compared. Data is reported on characteristics of the cohort, problems identified at referral, criminal justice disposal trends, index offences at time of referral, reoffending rates of up to 12 years after index offence, patterns of referral in the first 6 and second 6 years of the study period and the extent of harm reduction. Results. There were no differences between the groups on IQ and the sex offender cohort tended to be older. Female offenders had higher rates of mental illness although rates for the male cohorts were generally high at around 32%. The sex offending cohort had fewer problems with anger and aggression and alcohol abuse but a higher level of daily living problems and relationship problems. Female offenders had high rates of all problems studied except daily living problems. Unlike certain previous studies, sex offences predominated in the sex offender cohort while other types of offences predominated in the other two cohorts. Average age was lower for more recent referrals. Among recidivists only, a considerable amount of harm reduction was recorded. Conclusions. Fire raising and offences against children are not overly represented when compared with mainstream offenders. When compared with previous studies, it appears that a community forensic intellectual disability service may have an impact in reducing the number of offences committed over a 12 year follow up period.     

模型建构视野下的滥用职权罪——与玩忽职守罪之区别

近年来,刑法学界在涉及滥用职权和玩忽职守两罪的认定时争议颇多,尤其表现在对两罪主观罪过形式及客观方面特征的界定上。实际上,刑法所建构的犯罪识别模型(犯罪构成)虽然来源于生活原型,但由于人为概念系统固有的拟制功能,法律规定往往高于生活事实本身。据此,在犯罪模型上将所有故意性的一般渎职行为统一拟制为滥用职权罪,将所有过失性的一般渎职行为统一拟制为玩忽职守罪,虽然在一定程度上超越于事实原型本身,但却是十分必要和切实可行的。