刑法解释方法位阶性的质疑

文义解释有诸多局限,需要其他解释方法来印证和检验,因此其并不具有优位性。客观目的解释的功能具有多面性,其仅在目的性缩限时具有绝对优先性,因此不能一概认为其有决定性;主观目的解释仅在提供不处罚的立法资料时具有特殊价值。在刑法解释的商谈、试错过程中,方法的采用有"各取所需"的特点,采用何种解释方法取决于对处罚必要性的判断;解释是一种结果,通常是在结论确定之后再选择解释方法,为法官定罪与否提供"事后注脚";由于司法裁判必须考虑国民的认同感,且要接受后果考察,刑法适用就必须兼顾大量解释方法自身难以涵括的各种复杂因素。因此,如何立足于法条用语的通常含义,将犯罪论体系、规范保护目的、国民的规范认同、处罚必要性等内容一并考虑,并且坚持实践理性,选择对个案最为合适的解释方法,将实质解释的结论限定在特定时代能够接受的范围内,从而平衡好惩罚犯罪和保障人权的关系,是比刑法解释方法的位阶性更为重要的问题。     

Crime Statistics as Constructs: The Case of Swedish Rape Statistics

Using Swedish rape statistics as a focus, this article aims to empirically describe the way in which different factors affect official crime statistics produced at the national level. It is argued that cross-national comparisons of crime levels are extremely hazardous when based on official crime statistics, since the construction rules vary widely. International comparisons of crime levels should as a rule be confined to findings of international victim surveys. The example of rape statistics in Sweden - about three times higher when compared to other countries in the European Sourcebook - is used to explain what factors can influence statistics. Statistical, legal and substansive factors are to be taken into account. The author shows that changes in statistical routines, the legal definition of rape and changes over time all influence the statistics in a substansive way. This article indicates the great extent to which crime statistics are a construct, whose appearance is very sensitive to the rules applied in the process of construction. In order to employ statistics appropriately, a thorough knowledge of the principles guiding this process is therefore essential.     

疑难案件、司法判决与实质权衡

在疑难案件的审理中,经常可以发现,一些法律规则之外的因素影响了司法判决的做出。如何认识与评价这一现象？这些因素是否不可避免？如果是,这是否就意味着司法判决失去了客观性、确定性与合法性？文章通过考察几个中国司法实践中所出现的疑难案件,以及一些理论上的探讨,回答了上述问题,并得出结论：在疑难案件中,一个完整的法律论证必然要将某些法律之外的因素涵括进来;或者说,一个包含了法外因素的论证将更为真实、更为完整,从而也是更值得被接受的。     

Procedural Justice and Affect Intensity: Understanding Reactions to Regulatory Authorities

Why is it that some people respond in a more negative way to procedural injustice than do others, and why is it that some people go on to defy authority while others in the same situation do not? Personality theorists suggest that the psychological effect of a situation depends on how a person interprets the situation and that such differences in interpretation can vary as a function of individual difference factors. For example, affect intensity—one’s predisposition to react more or less emotionally to an event—is one such individual difference factor that has been shown to influence people’s reactions to events. Cross-sectional survey data collected from (a) 652 tax offenders who have been through a serious law enforcement experience (Study 1), and (b) 672 citizens with recent personal contact with a police officer (Study 2), showed that individual differences in ‘affect intensity’ moderate the effect of procedural justice on both affective reactions and compliance behavior. Specifically, perceptions of procedural justice had a greater effect in reducing anger and reports of non-compliance among those lower in affect intensity than those higher in affect intensity. Both methodological and theoretical explanations are offered to explain the results, including the suggestion that emotions of shame may play a role in the observed interaction.     

人民调解的关系/事件和行动策略分析

人民调解是个复杂的构成体,它表面上是对个别纠纷的解决,实质上是对社会关系的一次重新梳理。每个纠纷的解决都不是我们表面上所看上去的那么简单,有众多因素在背后影响着人民调解的进行。我们重点从关系/事件的分析角度入手,找出其背后的影响因素和行动策略,进而为人民调解的发展提供一定的建议。     

Business offenders in the criminal justice process

How are various types of business offenders treated by criminal justice institutions? Focusing on a range of “crimes against consumers” under Food, Trading Standards, and Weights and Measures laws, this article concludes that a variety of interrelated factors affect agencies' enforcement tactics and the disposition of cases. The nature of the offences involved, the form of law involved and its pattern of enforcement, and the identities and types of offenders all affect the course and outcome of the process. Few neat generalizations can be made about such factors, and simple allegations of agency bias are difficult to sustain. Significant “structural advantages” do, however, work to the benefit of some classes of offenders, such as large and established businesses, and these advantages are compounded as cases move from stage to stage. There are no simple remedies available for such contrasts in treatment, but the analysis does point to the need to consider basic concepts of crime and law enforcement within their ideological contexts.     

An Appraisal of the National Health Insurance Scheme of Nigeria

Clarity is very important in legislative drafting to allow the drafter to eliminate ambiguity and vagueness in the law, which may affect the rights of citizens. Ambiguity occurs when in the law words can be interpreted in more than one way and vagueness occurs when there is doubt to where the words’ boundaries are or when the word has an open textured meaning. It is difficult to attain clarity due to the fact that in legislation ambiguity and vagueness may be caused by insufficient drafting instructions, and it is incumbent on the drafter to seek further clarifications. In pursuing clarity, some tools are needed such as the use of plain language which makes legislation clear and understandable for a lay person, gender-neutral language and the proper structuring or layout of the legislative intent to enhance clarity.     

对我国合作网络预警系统的思考

合作治理作为治理理论的一种研究途径,强调公共管理的多主体参与。当前我国经济社会发展中存在的风险因素使突发公共事件预警工作有必要引入合作治理理念,构建全新的“合作网络预警”系统。     

Punishment within Prison: An Examination of the Influences of Prison Officials’ Decisions to Remove Sentencing Credits

Despite considerable research directed toward understanding the factors that affect punishment decision‐making leading to imprisonment, few studies have examined the influences of punishment decisions within prisons. Punishment decisions made within prisons can affect an individual's liberty during their imprisonment and/or the timing of their release from prison if the punishment results in the loss of sentencing credits or influences parole decision‐making. Moreover, if punishment disparities result from these decisions, then some offender groups may endure a greater loss of liberty relative to others. In this study, we examine the factors that influence prison officials’ decisions to remove sentencing credits in response to prison rule violations. Analysis of collected data from a Midwestern state prison system reveal that prison officials are primarily influenced by the seriousness and type of the rule violation, along with an inmate's violation history. Other relevant factors include those proximately connected to an inmate's risk of subsequent misbehavior such as gang membership and those that are linked to practical consequences and constraints associated with the organizational environment and particular inmates such as the proportion of their sentence an inmate has served and whether an inmate has mental health problems.     

Comparison of Age Estimation in Japanese and Scandinavian Teeth Using Amino Acid Racemization*

Abstract: Racemization method is currently considered to be one of the most accurate methods for age estimation. There are many factors that affect racemization reaction velocities. We investigated ethnic differences in the racemization reaction velocities between Japanese and Scandinavian teeth. After a heating experiment, the Arrhenius equation was used to obtain a rate constant (k). Both groups presented almost identical velocities, indicating that there was no difference in the tooth racemization reaction between the two groups. However, because 14 of the 18 Scandinavian teeth had multiple roots, it is possible that accurate racemization rates of the teeth themselves were not reflected in the results. These findings reconfirm that the type of tooth selected is extremely important when evaluating age by racemization.     

ON THE USE OF PANEL RESEARCH DESIGNS AND RANDOM EFFECTS MODELS TO INVESTIGATE STATIC AND DYNAMIC THEORIES OF CRIMINAL OFFENDING

There is a long-standing debate in criminology about the relative impact of static versus dynamic factors on criminal behavior. Researchers interested in estimating the impact of dynamic factors like prior offending or association with delinquent peers on criminal offending must control for static factors like intelligence, family background, or self-control, which could plausibly be correlated with criminal offending and the dynamic factor itself. Unfortunately, as a practical matter, it is not possible to observe all of these static factors. Statisticians and econometricians have shown that it is possible to identify the collective effect of static factors even though they cannot be observed. To achieve this objective, however, it is necessary to account for stable, unobserved individual characteristics through the use of "fixed-effect" or "random-effect" estimation. Criminologists often use random-effect estimators in these situations. We describe some of the assumptions that are necessary to develop valid inferences when time-varying covariates are used. Then, we use simulation evidence and an empirical application to show that bias can result when they are violated.     

Determining the time and day of photography

Photographs taken by crime victims and perpetrators are at times important evidence. Their time of photography may also affect their value as such. Three methods of determining when a picture was taken by using the content of the picture are presented. The methods utilize solar direction-measured from shadows in the photograph, identifying flowering wild plants and correlating cloudiness with meteorological observations. Solar direction is the most accurate and involved method and therefore is the main part of this paper. A case using all three methods is described.     

论刑事政策的评估

刑事政策评估的内容包括效益评估、成本评估、影响评估、过程评估、价值评估 ,其评估方法有前后对比法、成本效益分析法。影响刑事政策评估的重要因素有 :评估体制、评估主体、评估方法、评估环境等 ,应建立多层次、多方位的刑事政策评估机制。     

The Course Perceptions Questionnaire: Development and Some Pilot Research Findings

This study describes the development of a questionnaire for measuring instruction and studying the interaction between instruction and learning. Instruments such as the Course Perceptions Questionnaire ( cpq ) can help identify how different instructional methods affect what and how students learn and thus should help determine whether there is a single best method of instruction that results in the most learning by all students. Also, instruments like the cpq can provide instructors with information on how their instruction is perceived by students (and, more generally, whether the methods instructors believe they are using are, in fact, the methods they are using) and how students respond to their instruction.     

Making Sure Neuropsychological Data Are Meaningful: Use of Performance Validity Testing in Medicolegal and Clinical Contexts

Performance validity testing (PVT) is a standard of practice in situations where there are prominent secondary gain issues; however, it is suggested that their use may benefit neuropsychological evaluations in clinical contexts, as engagement in neuropsychological evaluations can affect the validity of testing and can occur for a variety of reasons outside of secondary gain issues. Several methods of embedded index development, as well as methods to combine them are discussed, including issues related to use of multiple indices. The potential limitations to administration of multiple indices are also explored. It is suggested that neuropsychological evaluations can benefit from PVT in regular clinical practice to assist with reaching firmer diagnostic conclusions by assuring test result validity.     

Use of Bayesian networks in forensic soil casework

Forensic soil comparisons can be of high evidential value in a forensic case, but become complex when multiple methods and factors are considered. Bayesian networks are well suited to support forensic practitioners in complex casework. This study discusses the structure of a Bayesian network, elaborates on the in- and output data and evaluates two examples, one using source level propositions and one using activity level propositions. These examples can be applied as a template to construct a case specific network and can be used to assess sensitivity of the target output to different factors and identify avenues for research.     

How Much Can We Trust Causal Interpretations of Fixed-Effects Estimators in the Context of Criminality?

Researchers are often interested in estimating the causal effect of some treatment on individual criminality. For example, two recent relatively prominent papers have attempted to estimate the respective direct effects of marriage and gang participation on individual criminal activity. One difficulty to overcome is that the treatment is often largely the product of individual choice. This issue can cloud causal interpretations of correlations between the treatment and criminality since those choosing the treatment (e.g. marriage or gang membership) may have differed in their criminality from those who did not even in the absence of the treatment. To overcome this potential for selection bias researchers have often used various forms of individual fixed-effects estimators. While such fixed-effects estimators may be an improvement on basic cross-sectional methods, they are still quite limited when it comes to uncovering a true causal effect of the treatment on individual criminality because they may fail to account for the possibility of dynamic selection. Using data from the NSLY97, I show that such dynamic selection can potentially be quite large when it comes to criminality, and may even be exacerbated when using more advanced fixed-effects methods such as Inverse Probability of Treatment Weighting (IPTW). Therefore substantial care must be taken when it comes to interpreting the results arising from fixed-effects methods.     

The Limits of Disclosure: What Research Subjects Want to Know about Investigator Financial Interests

Research participants' views about investigator financial interests were explored. Reactions ranged from concern to acceptance, indifference, and even encouragement. Although most wanted such information, some said it did not matter, was private, or was burdensome, and other factors were more important to research decisions. Very few said it would affect their research decisions, and many assumed that institutions managed potential conflicts of interest. Although disclosure of investigator financial interest information to research participants is often recommended, its usefulness is limited, especially when participation is desired because of illness.     

Consistency and reproducibility in fingermark deposition

A review of the available literature and previous research has suggested that there are several factors associated with the deposition of friction ridge skin marks that can affect the quality of the resultant marks, including the quantity of force applied, the angle of friction ridge and surface contact and the duration of friction ridge and surface contact. A device referred to as a fingerprint sampler was designed and constructed to facilitate the deposition of fingermarks for research projects. Fingermarks were deposited with and without the fingerprint sampler and examined for evidence of distortion. The quality of the marks was also assessed. The results of this study suggested that the fingerprint sampler deposited fingermarks without distortion caused by some physical factors associated with deposition and that the marks were of a statistically significantly higher quality than marks deposited without its use.     

Assessment of histomorphological features of the sternal end of the fourth rib for age estimation in Koreans

The aim of this study was to assess the histomorphological features of the fourth rib and to develop age-predicting equations for Koreans. Sixty-four rib samples (36 males and 28 females) obtained from forensic cases were used for developing equations. Two thin sections (<100-microm thick) per sample were prepared by manual grinding. Multivariate analysis of covariance revealed statistically significant differences in age-adjusted histomorphological variables between sexes. Using stepwise regression analysis, osteon population density and average osteon area were correlated with unknown sex (r2 = 0.826), and sex plus two histomorphological variables provided the best results for an age-predicting equation given the assumption of knowing the sex of a specimen (r2 = 0.839). Average Haversian canal area had little influence on age estimation for male or female samples, and relative cortical area was not significantly related to age for any specimen.