英国被害人参与刑事司法程序概述

在英国,伴随着犯罪学的发展,刑事犯罪被害人在刑事司法程序中的地位在20世纪70年代有了很大的提高。这与犯罪学和刑事司法学界对于被害人地位的重新认识密切相关:如果没有被害人向警方报案、提供案情重要线索并指认犯罪嫌疑人,警方必将投入更多的人力和物力进行犯罪侦查;如果没     

美国商业方法专利的十年扩张与轮回:从道富案到Bilski案的历史考察

1998年道富银行案揭开了美国商业方法专利序幕.此后十年间,美国的商业方法申请、授权和诉讼风起云涌,但并未显示对美国金融业和电子商务业带来益处.2008年美国联邦巡回上诉法院在Bilski案中放弃道富案标准,确立机器或转换标准,借以限制商业方法专利,但最高法院不予认可,商业方法专利判定重新回到不确定状态.考察美国商业方法专利的十年扩张与轮回,可有助于理解商业方法专利争论的实质,有益于把握我国的商业方法专利政策.     

Fraud: The Characteristic Crime of the Twenty-First Century

In the same way that larceny characterized much of twentieth century, fraud will likely characterize the twenty-first century. Larceny remains the most common oi all serious crimes, but fraud may overtake larceny as the crime of choice in the future, because of changes in our ownership, storage, and movement of property. Fraud involves purposely obtaining the property of another through deception, and its popularity as a crime of choice is growing. Entrusting property to the custody oi others, storing property at remote locations, and electronic movement of property are shown to be major changes in the way we treat property and increase opportunities for theft. The connection between fraud and many of the serious crimes of the twenty-first century are shown in the facts of recent cases. The motivation of thefl behind many frauds is also shown to be used to fund larger criminal objectives, such as illegal immigration and terrorism. The points of view expressed are those of the author and do not necessarily reflect the position or policies of the U.S. Department of Justice. Dr. Albanese is chief of the International Center at NIJ on leave from his position as professor of Government and Public Affairs at Virginia Commonwealth University.     

The Origin of the Troubles in Northern Ireland: An Historical Background

It is not possible in a short paper to deal with the nuances and complexities of the Irish situation. I can only hope to provide pointers and some basic facts. Even facts and pointers have to be placed in perspective. The perspective is necessarily that of the author.     

Marriage Law and Practice in the Long Eighteenth Century: A Reassessment

Lord Atkin. Geoffrey Lewis. London. 1983. Butterworths. xi + 248 pp. (incl. index). £14.95.

Law and Social Change in British History: Papers presented to the British Legal History Conference, 14–17 July 1981. Ed. J.A. Guy and H.G. Beale. London. 1984. Royal Historical Society. xiii + 194 pp. (incl. Index). £20.80.

Gentlemen and Poachers: The English Game Laws 1671–1831. P.B. Munsche, Cambridge. 1981. Cambridge University Press. x &; 255 pp. £18.50.     

The Complexity of Justice (a Challenge to the Twenty-First Century)

Abstract. The tension between liberalism and democracy is very likely to become one of the major confliction fields of the early twenty-first century. Those conflicts include the redefinition of the relationship between ethics, morality, and law—in all the three spheres of modernity: the intimate, the private and the public. It turns out that all three aspects of the relationship once described by Hegel (law, morality and Sittlichkeit ) remain equally decisive to maintain or regain the balance of freedoms in the modern world. There is no justice, nor is there equity—unless this balance is maintained. Law—in this context—is not just the defender of the "universal" aspect, but preferably also that of the balance of freedoms (both through interfering, and through the denial of interference in "ethical life").     

Governing Health and Social Security in the Twenty-First Century: Active Citizenship Through the Right to Participate

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this article is thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity.     

Old Assets,New Tricks: Insurance Portfolio Management in the Twenty-First Century

Two decades of rapid acceleration in the pace of merger and acquisition activity on the one hand, and litigation on the other, has led to broad recognition of the value of a company's portfolio of historic insurance assets. This article examines the trends in litigation, insurance industry practice, and mergers and acquisitions that are turning insurance portfolio management into a core component of risk management. It then outlines the new tools and techniques developed to document missing policies and to maintain quick access to the entire insurance portfolio. The return on investment is dramatic. Millions of dollars of coverage will be preserved and at the ready.     

“封网禁令”探析——以英国和澳大利亚为例

“封网禁令”是指版权人向法院提出申请,并由法院签发命令要求并无过错的网络服务提供者封锁侵权网站的一种禁令措施.这是立法规定的网络服务提供者应该担负的防止侵权行为继续发生的义务.国外已出现多起适用“封网禁令”的判例,并且多个国家相继修改版权法增加封网禁令的内容.作为一种由立法特别规定的版权侵权救济方式,其强势保护版权的初衷,必然引发对禁令签发合理性的质疑.因而,法院签发禁令的前提、需要考量的因素、诉讼程序以及成本负担都是研究的对象,也是未来国内立法和司法实践的借鉴.     

辨认笔录证据能力问题研究——以新《刑事诉讼法》为视角

辨认笔录作为新型的证据种类为新《刑事诉讼法》所确认,在辨认程序缺乏立法规制的情况下,如何对其可靠性和合法性进行审查判断成为实践中的难题。"两院三部"联合制定的《死刑案件证据规定》初步确立了辨认结果的审查判断规则,为法庭审查和采信辨认证据提供了一定的根据。但是,在辨认录像制度、见证人在场制度以及警察出庭作证制度尚未有效确立的情况下,对具有"传闻证据"性质的辨认笔录采用书面审查的方法仍具有相当大的局限性,不但难以发现辨认过程中存在的程序瑕疵和程序违法问题,而且无法完成对辨认结果可靠性的实质审查任务。本文针对我国侦查实践中常用的列队辨认和照片辨认程序,提出了具体的审查内容和方法,对"暗示性辨认"提出了具有可操作性的判断规则。对于辨认结果证据能力的认定,可以借鉴美国的"总体情况规则",采用"可靠性"判断标准,对于违反辨认规则获得的辨认结果,并不当然否定其证据能力,当该结果获得了"真实性的情况保障"时,可以作为定案根据。     

刑事诉讼中的权力制约与监督

我国刑事诉讼法构建了制约和监督两种权力监控机制以保障权力的合法行使。权力制约在限制侦查权、起诉权和审判权方面发挥了重要作用,但检察监督的效果并不理想。本文认为,在刑事诉讼中强化检察监督不仅会形成不合理的审判结构,而且不符合警检关系的发展趋势,相比之下制约则更具有优势。因此,我国刑事诉讼权力监控理论需要转型,应从监督论走向制约论。     

Coroners' autopsies: quality concerns in the United Kingdom

Safety in health care has increasingly become a key focus of health care providers. Data on "patient outcomes" and evidence-based clinical decision-making have led to real changes in health care policy and care provision. Specialist groups such as the National Patient Safety Agency which operates the National Confidential Enquiry into Patient Outcome and Death (NCEPOD) in the United Kingdom are reliant on good information in order to identify factors that lead to poor patient care. In a recent study the NCEPOD reviewed the quality of coroners' autopsy reports on which they rely for much of their core data. The study found that just over half of the reports (52%) were considered satisfactory by the reviewers, 19% were good and 4% were excellent. However, over a quarter of autopsies were marked as poor or of an unacceptable standard. While analysing the factors associated with poor-quality autopsies, comments and recommendations were made with regard to the processes of death investigation and the degree to which the coroner's death investigation meets the needs of health care services.     

英国《2002年犯罪收益（追缴）法》中的刑事没收制度

为了加强对犯罪收益的追缴力度,英国于2002年颁布了一项专门的法律———《2002年犯罪收益(追缴)法。该法律引进了两种新的追缴机制,即:以犯罪收益(proceedsof crime)为对象的刑事没收(confiscation)制度和以违法所得(proceeds of unlawful conduct)为对象的民事追缴(civilreco     

From Fear to Anxiety: An Exploration into a New Socio-Political Temporality

Modern political reality is increasingly permeated with testimonies and representations of social and personal anxieties. Most often these narratives are accompanied with a desire to identify and implement a ‘cure’ that will either heal or eradicate the source of discomfort. In the political everyday such a ‘cure’ is disguised as a policy or a new law. Thus it comes as a little surprise that the term anxiety is increasingly used by politicians, policy-makers, legal and medical experts as well as scholars to explain an allegedly new social phenomenon. Relying on psychoanalysis and critical theory the contributions in this special issue tackle modern anxieties in the realms of politics and law, and in particular look into how anxiety is manifested in relation to resistance, immigration, nationalism and austerity measures. This introduction firstly, unpacks the idea of anxiety conceptually and offers different ways in which anxiety can be read politically, legally as well as theoretically; and secondly introduces the arguments put forward in individual contributions.     

非虚构性及历史性:“论诗及事”诗话的叙事考察

叙事是论诗及事诗话的基本表述方式,此类诗话以非虚构叙事、小叙事和历史性叙事为主,与小说、传奇、野史等有很大不同,对事件细节、情节不作过多铺叙,呈现碎片化叙事特质,从见证者视角叙事。论诗及事诗话追忆诗事,记录古诗生长的语境及存在状态,诗话之事可将读者带至古诗产生时的历史空间,对古诗历史时空场景还原具有重要的价值和意义。阐释古诗若过于强调审美性、注重诗歌内部结构分析就容易造成脱离历史语境的误读,或作品阐释的自我封闭,或脱离文本的过度阐释。