'Manifest Madness': Towards a New Understanding of the Insanity Defence

This article introduces a new concept which can serve as a theoretical frame for understanding the way in which insanity is proved for the purposes of the criminal law. With reference to George Fletcher's concept of 'manifest criminality', it introduces the concept of 'manifest madness'. This concept constructs madness (a shorthand for the types of mental abnormality known to the criminal law as insanity) in criminal law as evident to lay observers, and its meanings, which are derived from collective knowledge of it, as encoded in the defendant's acts. Through an historical analysis of the way in which insanity has been proved in criminal law, the article argues that 'manifest madness' is useful for understanding how knowledge about insanity is structured in the criminal courtroom. The concept of 'manifest madness' provides a frame that incorporates evidentiary and procedural features of the insanity defence that have resisted systematic theoretical analysis.     

美国刑法中的文化辩护研究

美国作为世界上最种族多样化的国家,文化冲突现象大量存在.刑法领域的文化冲突问题--文化辩护,即被告人文化背景差异的事实应否作为证据采纳以及如何被采信.在价值判断上,美国刑法允许文化背景证据适用;在方法抉择上,"限制适用说"的三层次判断模式,确保了文化背景证据适用的精确性和可操作性.文化辩护反映出美国文化的包容性、美国法律的开放性以及冲突权利平衡的特征.我国少数民族风俗习惯与刑法相冲突问题的解决,可以从中获得一定的启发.     

律师刑事辩护与“宽严相济”刑事政策的贯彻实施

一、“宽严相济”刑事政策的基本内涵刑事政策是国家为预防犯罪、减少犯罪以致消灭犯罪而制定的同犯罪行为作斗争的指导方针和对策。作为国家刑事政策重要组成部分的“宽严相济”刑事政策,其基本内涵是,从严的方面而言,即对犯有严重罪行的罪犯处以较重的刑罚,或者对具有从重情节的罪犯,在法定刑幅度内处以较重的刑罚;就宽的方面而言,既指对犯罪分子的惩办必须结合教育改造,给予悔过自新之路,也指对犯有较轻罪行的犯罪分子处以较轻的刑罚或者对具有从轻或减轻情节的罪犯,在法定幅度内或幅度外处以较轻的刑罚,或者依法对罪犯免除处罚①。宽与…     

Democratic Legitimacy and the International Criminal Court: A Liberal Defence

In response to the criticism that the International CriminalCourt is undemocratic, this article outlines a liberal conceptionof institutional legitimacy and defends its appropriatenessas a moral foundation for the International Criminal Court.In contrast to a communitarian concept of democracy (which seesdemocracy as an expression of the general will), liberals seepolitical legitimacy as stemming from a respect for fundamentalhuman rights. Thus, as long as the International Criminal Courtrespects the right of the accused to a fair trial, then it isa legitimate institution.     

Self-Representation versus Assignment of Defence Counsel before International Criminal Tribunals

After examining the drafting history of Article 14 of the UNCovenant on Civil and Political Rights, which lays down a defendant'sright ‘to defend himself in person or through legal assistanceof his own choosing’ — the relevant national andinternational case law and scholarly commentary — theauthor argues that the underlying purpose of the right at issueis to ensure a fair trial. This objective can best be met incases of former leaders accused of international crimes by assigningthe defendant a highly qualified attorney who is vigilantlycommitted to representing his client's interests. In his view,there are two main reasons why a court in international crimestrial should be able to require the defendant to work throughcounsel: (1) the likelihood that a defendant will act in a disruptivemanner; and (2) the unique need in a complex international crimescase for an orderly trial.     

中俄刑事辩护制度比较

对中俄刑事辩护制度进行较为全面的比较 ,旨在引起学界的思考和研究 ,以有利于我国刑事诉讼法的完善与进步。同时 ,防止在刑事程序改革上发生左倾或右倾的偏离     

新刑法对正当防卫制度的修改评析

本文比较了我国新旧刑法典关于正当防卫制度的规定,对正当防卫制度修改之处进行了评析,提出了修改的成功与与不足之处。经过修改,正当防卫的概念更趋规范、科学;放宽了正当防卫的限度条件,有利于人民群众同违法犯罪作斗争;确立了无限防卫权,强化了公民的正当防卫权,同时也埋下了公民防卫权滥用的隐患。     

Dialogue and the Inquisitorial Tradition: French Defence Lawyers in the Pre-Trial Criminal Process

Recent years have seen an intermittent debate amongst journalists, policy-makers and academics in adversarial jurisdictions about the nature and quality of the inquisitorial tradition in criminal process. Much of the political impact of the debate in Britain has stemmed from the view asserted periodically by certain high profile figures that some form of judicial supervision of police investigation – as practised for example in France – might be introduced in England and Wales.¹ Such views tend to find expression when events call into question not just particular rules but also the underlying structures and assumptions of our adversarial tradition of criminal process. Thus in 1991 the public revelation of serious miscarriages of justice led to the appointment of a Royal Commission on Criminal Justice in which the adversarial character of the pre-trial process seemed to be a key point of interrogation.² The police view, demonstrated in a number of key cases, was that once they were clear that a suspect was guilty they had no responsibility to pursue exculpatory lines of investigation. This, combined with the failure of defence lawyers to play the extensive, autonomous investigative role the adversarial system demanded of them, encouraged some to ask whether there might not be advantages in somehow ensuring that the resources and rights of the state were devoted to pursuing exonerating as well as incriminating evidence. Given the limited empirical evidence then available on the workings of judicial supervision in practice⁴ and the sometimes vehement dispute in France itself about the future of its pre-trial process and especially the juge d'instruction(examining magistrate), the proposals were perhaps not surprisingly rejected.⁵ But since the mid 1990s, British funders have begun to finance a number of empirical studies of French criminal justice.⁶ This paper reports the principal findings of a empirical study primarily funded by Britain's Economic and Social Research Council into the role of defence lawyers in France.⁷ Our focus and primary theme is the developing nature of their dialogue and exchanges with key state actors such as judges, prosecutors and the police on the one hand and with clients on the other. But in so doing we aim to cast light on the broader functioning of the pre-trial process in France.     

Insanity plea

Examining 484 consecutive criminal cases in which the NGRI plea was made, it was found: (1) a high degree of interexaminer agreement existed on the issue of the defendant's mental state in a nonadversary examination procedure; and, (2) court verdicts were highly congruent with the opinions expressed by examiners on the issue of insanity.     

司法实务中用法律精神病替换临床精神病的思考

对《刑法》第18条"精神痛"的理解,法学界和医学界的一些人观念中有整体偏差,致使法律对健康人群的保护不够,纠偏的有效措施是用法律精神病替换临床精神病。     

死刑案件辩护有效性研究:状况、困境与出路

对死刑案件相关辩护情况进行调查研究可知,我国对于刑事辩护投入不充分,资源分配不均衡;辩护程序依附于定罪、量刑合一的审判传统;公权力机关内凝型关系挤压死刑辩护的空间;民意与舆论压力也妨碍死刑案件辩护的有效性。在党的十九大报告明确社会主要矛盾已经转化,要深化司法体制综合配套改革,同时最高人民法院和司法部试点刑事案件审判阶段的律师辩护全覆盖的改革语境下,职能部门应调整死刑案件法律援助费用及其来源,适时提高死刑案件辩护律师的资质要求,充分保障死刑案件中辩护律师的执业权利,将死刑案件定罪和量刑阶段的辩护程序分离,完善证人、鉴定人出庭机制,在死刑案件中逐步确立无效辩护制度,营造尊重和维护死刑案件辩护权的法律文化。     

Knowledge and Insanity

This paper lies at the intersection of law and logic. Logical analysis is employed to attempt to make headway in what has proven to be an intractable interpretive debate over a defence provision of the Indian Penal Code.     

中国控辩协商制度研究--刑事诉讼特别程序之探讨

逐步扩大简易程序和其他速决程序的适用范围,是近年来世界各国刑事诉讼法的发展趋势之一.随着我国当事人主义诉讼模式的初步确立,对抗性审判的程度得到了进一步增强,但刑事案件数量持续上升与司法资源有限之间的矛盾却日益突出,在此情形下,借鉴美国辩诉交易制度及西方其他国家的刑事诉讼特别程序,创设具有中国特色的控辩协商制度这种非审判式案件处理方式,就成为我们可供考虑的选择.