中国刑法语境中的“共谋罪”考辨

共谋罪是英美刑法特有的概念。共谋罪的本质是二人以上就犯罪、不法行为或其他行为的实施达成协议。惩罚共谋罪本质是惩罚不法协议。围绕“共谋罪独立于目标犯罪而具有可罚性”的基础性观念,英美刑法创设了相应的实体法和程序法规则。我国刑法中的阴谋犯、预备犯等与英美刑法共谋罪从根本上说是不同的范畴。我国刑法并不惩罚共谋罪。     

A plea for thresholds, i.e., maximal allowed levels for prohibited substances, to prevent questionable doping convictions

With the development of highly sensitive drug testing technologies that can detect a minute quantity of a prohibited substance in an athlete's body, accidental contamination through contact with publicly circulated materials can more readily result in a "positive" reading. To discharge the burden of a positive finding, the athlete must show the "factual circumstances" in which the prohibited substance entered his/her system. In cases of accidental contamination, the athlete generally cannot even know how it occurred, as there are many known and unknown possible sources of contamination. When an athlete does give an account, it cannot generally be proven or disproven. Outside the realm of sports anti-doping, the use of scientifically established thresholds for drug testing is standard practice. Basic logic dictates that thresholds would enable one to differentiate between relevant and irrelevant amounts in the context of a possible sports doping offence. Such a threshold should be functionally motivated, i.e., enable the differentiation between relevant and irrelevant quantities in the context of a possible doping offence, rather than based on instrument performance limits.     

着手理论的消解与可罚行为起点的重构

把一个固定的着手“点”预定为可罚行为起点,违反了刑法作为经验科学的规律,这是形而上学的自然科学主义思维,在今天应当被清算;而中国的着手理论更非可罚行为起点;因此,再建可罚行为起点理论是刑法学的一项基础性工作。可罚行为起点应当从罪过的明确性、主体推动犯罪进行的不停顿性、行为的危险性和形式上的非法性等四个方面进行综合的具体判断。     

Development of the role of national anti-doping organisations in the fight against doping: from past to future

When action against doping began, sport itself was, as a rule, responsible for anti-doping measures and governments often had only a subsidiary function. However, due to doping scandals or doping allegations, the formation of independent anti-doping organisations (NADOs) was already discussed in the 1990s in some countries as guarantors for clean sports. In the course of the doping scandal at the Tour de France in 1998 and the systematic intervention of the French state, the World Anti-Doping Agency (WADA) was founded 1999 at an international level. In the following years, the WADA-model was often copied at a national level and a multitude of independent NADOs came into being. NADOs play a key role worldwide in combating doping. Their influence in developing an international anti-doping policy and implementing it in the form of standards and regulations is today, however, low; they are not directly represented in the decision-making bodies of the WADA. This should be changed with regard to elaborating the new World Anti-Doping Programme for 2014.     

Use of forensic investigations in anti-doping

The fight against doping is mainly focused on direct detection, using analytical methods for the detection of doping agents in biological samples. However, the World Anti-Doping Code also defines doping as possession, administration or attempted administration of prohibited substances or methods, trafficking or attempted trafficking in any prohibited substance or methods. As these issues correspond to criminal investigation, a forensic approach can help assessing potential violation of these rules. In the context of a rowing competition, genetic analyses were conducted on biological samples collected in infusion apparatus, bags and tubing in order to obtain DNA profiles. As no database of athletes' DNA profiles was available, the use of information from the location detection as well as contextual information were key to determine a population of suspected athletes and to obtain reference DNA profiles for comparison. Analysis of samples from infusion systems provided 8 different DNA profiles. The comparison between these profiles and 8 reference profiles from suspected athletes could not be distinguished. This case-study is one of the first where a forensic approach was applied for anti-doping purposes. Based on this investigation, the International Rowing Federation authorities decided to ban not only the incriminated athletes, but also the coaches and officials for 2 years.     

Analytical aspects in doping control: challenges and perspectives

Since the first anti-doping tests in the 1960s, the analytical aspects of the testing remain challenging. The evolution of the analytical process in doping control is discussed in this paper with a particular emphasis on separation techniques, such as gas chromatography and liquid chromatography. These approaches are improving in parallel with the requirements of increasing sensitivity and selectivity for detecting prohibited substances in biological samples from athletes. Moreover, fast analyses are mandatory to deal with the growing number of doping control samples and the short response time required during particular sport events. Recent developments in mass spectrometry and the expansion of accurate mass determination has improved anti-doping strategies with the possibility of using elemental composition and isotope patterns for structural identification. These techniques must be able to distinguish equivocally between negative and suspicious samples with no false-negative or false-positive results. Therefore, high degree of reliability must be reached for the identification of major metabolites corresponding to suspected analytes. Along with current trends in pharmaceutical industry the analysis of proteins and peptides remains an important issue in doping control. Sophisticated analytical tools are still mandatory to improve their distinction from endogenous analogs. Finally, indirect approaches will be discussed in the context of anti-doping, in which recent advances are aimed to examine the biological response of a doping agent in a holistic way.     

证明方法自由原则在CAS兴奋剂仲裁中的适用及例外

证明方法自由原则是指与反兴奋剂违规有关的事实可以通过包括自认在内的任何可靠手段所确认。证明方法自由原则是"法无禁止即自由原则"在CAS兴奋剂仲裁证明活动中的具体化,由于CAS兴奋剂仲裁庭没有类似国内法中的强制性证据规则以遵循,因此当事人可以在不违背CAS所在国瑞士强行法的前提下自由使用任何证明方法。证明方法自由原则保障了当事人使用合理证据方法维护自身权益,但由于其基础理论是"法无禁止即自由原则",因此规则对这一原则适用的束缚构成例外情况,而适用与例外构成了证明方法自由原则的面面观。而例外情况还存在需要进一步完善之处。当前我国兴奋剂纠纷仲裁制度正处于建设阶段,对证明方法自由原则的研究将有助于我国相关规则的制定,为全球反兴奋剂活动提供有益的成果。     

Involvement of the health industry in the fight against doping in sport

Most substances used for doping in sport are legitimate pharmaceutical products deviated from their intended therapeutic applications. One of the major challenges for anti-doping authorities, in anticipation of future doping trends, is to assess the doping potential of drugs in development by the health industry and to timely develop anti-doping analytical methods to detect their abuse before such drugs become available to athletes intending to use them as doping agents. In this regard, the World Anti-Doping Agency (WADA) has recently consolidated several agreements with representatives from the pharmaceutical sector in order to establish a framework of collaboration and to facilitate the identification and transfer of information on drugs in development. The context of the collaborative effort between WADA and the pharmaceutical and biotechnology industries, as well as the role of drug regulatory agencies in an integrated process in support of the fight against doping in sport are described in this article.     

论继承性共犯

继承性共犯,是指在先行为人已经实施了犯罪的手段行为或者结合犯的前一犯罪之后,以共同的犯罪故意单独或者帮助先行为人实施犯罪的目的行为或者结合犯的后一犯罪的犯罪人。继承性共犯只存在于两种犯罪形态中:一是由手段行为和目的行为结合而成的犯罪,二是结合犯。对继承性共犯应确定与被继承性共犯同样的罪名。     

La protección de los derechos fundamentales del deportista en la lucha contra el dopaje. Una visión desde el ordenamiento jurídico español

Doping is addressed in this paper from two different scopes: on one hand, the legal regulations for prevention and repression are studied; on the other hand, the clash between the anti-doping control mechanism and a fundamental right such as the athlete's privacy is noted. We start from the irrefutable fact that “awareness against doping” is practically universal. The enactment of this law was a milestone in the history of the fight against doping in the Spanish regulation. However, the problem arises when the anti-doping legislation worldwide and in Spain, which enables some healthcare professionals and other people involved, to carry out several anti-doping operations that may conflict with the athlete's fundamental right to privacy, all of this in a context of strong media and social impact. For this reason, it is pertinent to raise the issue if one of these operations, such as the duty of permanent localization, is sufficiently justified in terms of protecting the sportsperson's health.     

试论忘却犯的行为性

忘却犯是指负有防止危害结果发生义务的人因为疏忽大意的过失而未尽职责致使该结果发生从而构成的不纯正不作为犯。忘却犯是历来确定行为概念时不得不面临而又最难逾越的障碍。只有将行为定义为“体现了主体的心理事实、能对社会生活产生重大影响的身体动静”方可正确地说明“犯罪是行为”这一命题。     

我国刑法中轻罪与重罪若干问题研究

我国刑法中轻罪与重罪的划分,仅指轻罪行与重罪行的划分。在学术界关于区分轻罪和重罪的四种观点中,以一定法定刑为标准认定罪行的轻重具有充分的依据。认定轻罪和重罪法定刑的分界线当以有期徒刑3年为限,即凡法定最低刑为3年或3年以上有期徒刑的罪行都是重罪,反之便是轻罪。我国刑法存在若干轻罪与重罪界限不明的条文,需调整其罪刑关系。犯罪的未完成形态只存在于重罪之中。     

Why a Criminal Prohibition on Sex Selective Abortions Amounts to a Thought Crime

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime.     

Medical and legal aspects of genital mutilation and circumcision part I: female genital mutilation (FGM)

Female genital mutilation (FGM) is considered to be against the law and against morality not only in Western countries, although a woman of age and able to consent may sometimes think differently. The procedure may have serious physical and emotional consequences for the girl or woman. Nevertheless there are attempts to justify the procedure with medical and hygienic pseudoarguments, ideology, freedom of religion, cultural identity and social adequacy. Outside the Western world, some people claim that religion and culture alone justify the practice. In Germany, parents can lose the right to determine the residence of their daughter, if she is faced with the risk of genital mutilation in order to prevent that the child or girl is taken to her home country. Genital mutilation as a gender-specific threat is recognized as a reason to grant asylum or prevent deportation. Proposals to make genital mutilation a separate punishable offence are presently discussed by the legislator.     

Fraud by Abuse of Position and Unlicensed Gangmasters

This article analyses the Court of Appeal's interpretation of the fraud by abuse of position offence in R v Valujevs. Two issues are explored: first, the Court's welcome clarification of the meaning of a relevant ‘expectation’; second, the inadequacy of the Court's reasoning in deciding that an unlicensed gangmaster ‘is expected to safeguard, or not to act against, the financial interests’ of his workers.     

组织犯:诠释基础、类型与处罚

组织犯作为共犯人的一种类型,在各国刑法理论及司法实践都得到普遍承认,但对于组织犯的探讨与适用由于各国犯罪论体系以及刑法分则条文构建基础的不同也必然体现出不同的立法与司法操作思路。在我国以社会危害性为中心所构建的犯罪论及刑法分则体系的具体语境下,为贯彻罪刑法定原则,我们应当坚持形式认定标准的立场,采用形式意义上的组织犯概念,从广义上来理解组织犯范围。在组织行为实行行为化过程中应遵循等价性原则,做到综合考量、从严掌握、谨慎处理,这也是由组织行为与实行行为在法律性质归属上具有本质区别所决定的。     

目的犯的目的研究

目的犯的目的是指目的犯行为人希望通过实施犯罪行为以达到某种结果的心理态度。这种心理态度是由具有不同心理内容的直接故意目的和特定犯罪目的构成的。其中 ,直接故意目的就是直接故意中的意志因素 ,其是否实现影响目的犯是构成既遂 ,还是未遂 ;特定犯罪目的是行为人所追求的超出直接故意意志因素的最终结果 ,其是否实现虽不影响目的犯是否完成 ,但当特定目的实现行为本身独立构成犯罪时 ,应以处理牵连犯的原则来对之进行刑法上的评价。     

How to Make a Terrorist Out of Nothing

R v G concerns the controversial offence of collecting or recording information likely to be useful to a person committing or preparing an act of terrorism. We comment on a number of deficiencies in that judgment and investigate the proper approach that ought to be taken to that offence under the Human Rights Act 1998.     

Elevated and similar urinary testosterone/epitestosterone ratio in all samples of a competition testing: suspicion of a manipulation

The case of seven urine samples collected for anti-doping purposes during a cycling stage race with moderately elevated testosterone and epitestosterone ratio (T/E) is reported. The very low probability of having all seven urine samples with such similar elevated T/E ratio (from 3.2 to 4.7) was very suspicious. Different pattern classification tools were tested to categorize the most similar steroid profiles, but none of the models enabled a clear classification of the different urine samples. Subsequently, genetic profiling of all urine samples was performed and demonstrated that three of the seven samples were collected from the same cyclist. Finally, the International Federation confirmed DNA profiling results. This suggests that urinary steroid data using several methodologies are not appropriate for identification purposes and to an extent not unique to individuals.     

搜索引擎与滥用市场支配地位

从反垄断法的角度出发,现有大型搜索引擎运营商们是否实施了违法行为,一直都是各国学者及实务界关注的焦点,其中最主要的争议问题即这些运营商们是否滥用了市场支配地位。根据我国反垄断法相关规定,结合我国学者论述,并参考欧盟相关理论和实践,着眼于我国目前相关诉讼和指责等实际情况,探讨了诸如相关市场界定争议、市场支配地位证明、滥用行为是否可能和在反垄断法意义上是否成立等问题。虽然理论上存在基于滥用行为而限制竞争的可能性,但从中国和欧盟反垄断法的具体规定,尤其是举证责任问题的规定上看,在实践中确实认定搜索引擎运营商滥用市场支配地位仍需时日。