犯罪本质特征新说 --社会学与刑法学立场分野下的认识

行为具有严重的社会危害性,在社会学意义上无疑是犯罪。但在刑法学意义上讲,却并非如此。刑法上的犯罪,离不开法律的规定。刑事违法性,是立法者将那些具有严重社会危害性的行为纳入犯罪圈的标识,是判定罪与非罪的惟一标准。在个罪成立与否的判定中,既要考虑刑法分则的规定,也要考虑刑法总则规定的犯罪定义,以防止形式的犯罪构成解释论。在刑法学中,犯罪的本质特征应该是立法者选定的行为的严重社会危害性,而非仅为行为的严重社会危害性。     

Psychosocial Perspectives of Girls and Violence: Implications for Policy and Praxis

Psychosocial and feminist criminologies produce a complex etiology of adolescent female violence, and advance understanding of much female behavior that juvenile authorities formally address: mental health disturbances. When girls’ violent behaviors are considered within a psychodynamic theoretical framework, policy problems are dramatically redefined, resulting in a reformulation of the social problem, newly contextualized, and the collective responses to the troubled girls it has defined. This paper places known etiologies of violent behaviors, including case study material, in a context of extant social policies that impact and determine the social location and control of violent girls. We argue that efficacious policy responses would be psychosocially informed, and focus upon a more holistic mental health praxis, rather than criminal justice practices alone.     

THE STRUCTURAL SIMILARITY OF PROCESSES GENERATING CRIMINAL AND ANALOGOUS BEHAVIORS*

It is possible to distinguish between broad-domain theories that offer an explanation for all phenomena of interest to a discipline and narrow-domain theories that attempt to explain a subset of those phenomena. In criminology, this distinction has prompted theorists and researchers to confront the question of whether the same etiological process can explain variation in all types of criminal offending behavior or whether it will be necessary to adopt different theories to explain variation in different kinds of criminal behavior. One broad-domain theory, advanced by Gottfredson and Hirschi (1990), contends that a variable called “self-control” can account for variation in all kinds of criminal conduct as well as variation in many acts that are “analogous” to crime in some ways but are not actually criminal. Analogous behaviors include, among other things, smoking, drinking, involvement in accidents, gambling, and loitering. Using data from the Cambridge Study in Delinquent Development (N = 369 males), we attempt to define operationally the concept of self-control with a set of variables measured at ages 8–9. We then examine the empirical association between this self-control measure and self-reported involvement in a variety of criminal and analogous acts during adolescence. In support of Gottfredson and Hirschi's position, our results indicate that self-control is associated with both outcomes and that the strength of the association is approximately equal. Contrary to the expectations of their theory, however, was our finding that the covariance between criminal and analogous behaviors could not be explained entirely by variations in self-control. This finding suggests that factors other than time-stable differences in criminal propensity do matter for criminal and legal, but, risky behaviors.     

UNPACKING THE RELATIONSHIP BETWEEN ADOLESCENT EMPLOYMENT AND ANTISOCIAL BEHAVIOR: A MATCHED SAMPLES COMPARISON*

A large body of research has consistently found that intensive employment during the school year is associated with heightened antisocial behavior. These findings have been influential in prompting policy recommendations to establish stricter limits on the number of hours that students can work during the school year. We reexamine the linkage between first‐time work at age 16 during the school year and problem behaviors. Our analysis uses group‐based trajectory modeling to stratify youths based on their developmental history of crime and substance abuse. This stratification serves to control for preexisting differences between workers and nonworkers and permits us to examine whether the effect of work on problem behaviors depends on the developmental history of those behaviors. Contrary to most prior research we find no overall effect of working on either criminal behavior or substance abuse. However, we do find some indication that work may have a salutary effect on these behaviors for some individuals who had followed trajectories of heightened criminal activity or substance abuse prior to their working for the first time.     

A Life-Course Perspective on Stress,Delinquency, and Young Adult Crime

This study uses General Strain Theory (GST) to describe and examine one potential pathway of delinquency/crime escalation and de-escalation across adolescence and young adulthood. In particular, the time-varying consequences for delinquent behavior and young adult crime of persistent or increasing levels of strain are addressed using data from the Family Health Study, an eight-year longitudinal data set (n = 840). The results indicate that there is a positive association between experiencing one type of strain—stressful life events—and involvement in delinquent or criminal behavior during this period of the life-course. However, the impact of stressful life events on these behaviors is diminished among young adults. Moreover, delinquent/criminal peer associations attenuate the age-specific effects of stressful life events, thus suggesting that peers play a central role in the association between strain and these behaviors. Implications of the results for theory and policy are discussed.     

Brains in context in the neurolaw debate: the examples of free will and "dangerous" brains

Will neuroscience revolutionize forensic practice and our legal institutions? In the debate about the legal implications of brain research, free will and the neural bases of antisocial or criminal behavior are of central importance. By analyzing frequently quoted examples for the unconscious determinants of behavior and antisocial personality changes caused by brain lesions in a wider psychological and social context, the paper argues for a cautious middle position: Evidence for an impending normative "neuro-revolution" is scarce and neuroscience may instead gradually improve legal practice in the long run, particularly where normative questions directly pertain to brain-related questions. In the conclusion the paper raises concerns that applying neuroscience methods about an individual's responsibility or dangerousness is premature at the present time and carries serious individual and societal risks. Putting findings from brain research in wider contexts renders them empirically investigable in a way that does not neglect psychological and social aspects of human mind and behavior.     

AN EXAMINATION OF OFFENSE SPECIALIZATION USING MARGINAL LOGIT MODELS*

Research on offense specialization has concluded that there is a great deal of versatility in offending. Although the preponderance of evidence supports versatility, some research points to a small but significant tendency to specialize. Beyond this observation there is little consensus over the degree of offense specialization, the similarities and differences between people who commit violent acts and those who engage in other criminal behavior, or the extent to which general causal processes are sufficient to explain variation in diverse forms of crime and delinquency. At the heart of the confusion is the fact that criminal behaviors across a wide spectrum are positively correlated with one another. In our opinion, the conclusion that general offending trumps offense specialization is the result of research designs that predetermined such a conclusion. We propose an alternative method, marginal logit modeling, that supports many desirable features suited to the investigation of offense specialization. We analyze nine self‐reported delinquent behaviors (with a tenth category representing “No Offense”) from the Add Health study. We show that violent offenders are more likely to engage in additional violent offenses, nonviolent offenders are more likely to engage in additional nonviolent offenses. For some offense types, we find no evidence of a tendency to commit both violent and nonviolent offending. For others, the offense generalization effect is weak compared to the offense specialization effect.     

Patient Profiles of Criminal Behavior in the Context of Traumatic Brain Injury

Traumatic brain injury (TBI) can lead to significant post‐traumatic disturbances in mood and behavior, with the frontal lobes playing a key role in emotional and behavioral regulation. Injury to the frontal lobe can result in disinhibition and aggression which can result in police intervention and/or incarceration. We highlight four adult cases with a history of severe TBI with frontal lobe injuries and the presence of post‐TBI criminal behaviors. There is evidence to support an anatomical basis for aggressive behaviors, yet there are other risk factors to be considered. Behaviors must be investigated thoroughly by obtaining adequate pre‐ and post‐TBI psychiatric and psychosocial histories. By having a comprehensive understanding of aggression while appreciating the complex relationship between TBI, aggression, and premorbid risk factors, clinicians can more adequately treat patients with TBI, with the aim of potentially preventing criminal behaviors and recidivism.     

过失危险犯质疑及其理论归属

过失危险犯违反过失犯罪的基本理论,其实质是故意犯罪,不应以加大业务过失犯的处罚为理由设置过失危险犯。我国刑法没有过失危险犯的立法例,妨害传染病防治罪、妨害国境卫生检疫罪罪状中的危险应从刑法规范论的角度进行理解,不能望文生义。针对一些严重违反规章制度造成危险状态的行为的归责问题,立法不应设置过失危险犯而应设置新的抽象危险犯类型。     

刑事被害人的知情权探析

被害人的知情权是被害人行使其他诉讼权利的逻辑前提,是诉讼民主的重要体现,亦有助于实现社会正义。国际公约及其他国际性文件和法治发达国家都对公民的知情权及被害人的知情权都作了明确规定,有的国家甚至将其上升到宪法的高度。我国刑事被害人享有一定程度的知情权,但权利告知规则仍不完善,被害人对案件的进展、诉讼结果以及刑罚的执行情况缺乏知悉途径,知情权的实现缺乏保障机制。立法上应对其作相应完善。     

Criminal Behavior: A Real Option Approach With an Application to Restricting Illegal Insider Trading

Traditionally, criminal behavior is analyzed within an expected utility framework. This paper offers an alternative model to analyze criminal behavior based on real option models. It is shown that all criminal decisions can be analyzed as real options, in a sense that they confer the possibility but not the obligation to commit a crime in the future. The criminal option model is a richer model compared to conventional economic models of crime, because it takes into account four additional variables. As such, the conventional economic analysis of crime is a special case of criminal option models. The criminal option model is then applied to the enforcement of illegal insider trading. Based on the six value-drivers of criminal options, an active management strategy can be developed for the criminal as well as for the legislator.     

关于合同诈骗罪的数额标准评析

合同诈骗罪从普通诈骗罪中分离,其目的在于对利用合同实施诈骗的犯罪行为从重打击,其原因在于一般诈骗罪所侵犯的是公私财产所有权,而合同诈骗罪不仅侵犯了公司财产所有权,更侵犯了市场经济秩序和合同管理制度。然而,在两罪法定刑量刑幅度基本一致的情况下,司法解释和司法解释授权地方制定的合同诈骗罪"数额较大"、"数额巨大"的标准均高于一般诈骗罪的数额标准,导致司法实践中出现同一个合同诈骗行为依合同诈骗罪条款无罪或罪轻,依诈骗罪条款有罪或罪重的悖论。     

Delinquent histories of adolescents adjudicated for criminal sexual conduct

A content analysis of closed case records from family court examined personal and family history variables for adolescents with sexually abusive behaviors who had been adjudicated for criminal sexual conduct and compared subgroups of adolescents with ( n = 72) and without (n = 80) prior other delinquent behavior. The study's findings indicate that adolescents with and without prior delinquent behaviors differed on a majority of the variables measured in this study. Adolescents with sexual offending behaviors who also had prior delinquent behaviors were older and had higher rates of documented childhood maltreatment, and drug and alcohol use. These adolescents had caregivers with more substance use and abuse problems and more extensive criminal histories. These findings have a number of practice implications when working with adolescents with sexually abusive behaviors. The findings also suggest that comparisons between adolescents with sexually abusive behaviors and other delinquents may be misleading if these subgroups of adolescents with sexually abusive behaviors are not distinguished.     

Incapacity of the Mind Secondary to Medication Misuse as a Not Criminally Responsible Defense

The manifestations of disorders of the mind may play a role in the occurrence of criminal behavior. In the majority of the cases, the presence of a psychiatric disorder is cited as the reason that an individual was not fully aware of his behavior. However, other conditions, such as seizure disorders or hypoglycemia, have also been linked to an inability to understand the nature and consequences of one's actions. On occasion, these situations can be explained by a state of automatism that may be described as insane or noninsane. In this article, we describe the case of a 77‐year‐old man, suffering from Parkinson's disease, where the issue of criminal responsibility associated with incapacity of the mind secondary to medication misuse was raised. We elaborate on the thinking behind this opinion and the implications according to Canadian law. Although the legal outcome of this case is specific to our jurisdiction, the clinical implication may be common to any patient suffering from a similar condition and may inform physicians, families, and lawyers.     

论人格在定罪中的运用

刑法上的人格特指行为人对刑法所保护价值的对立态度,它是认定犯罪的内在根据。在人格影响定罪问题上,现有的"否定论"、"出罪论"和"法定论"观点都难以给出合理解释。外部行为是人格的现实化,除涉案行为外,人格的载体还包括案前和案后的表现。行为人的对立人格必须达到一定程度,是一切犯罪成立所必需具备的条件。当涉案行为处于立案标准的边缘时,案前、案后表现等情节就可能使得对行为人的整体人格态度评价发生质的变化,从而发挥人格在出、入罪方面的双向功能。要保障人格的此种功能得到有效落实,除了要扩大法官的自由裁量权外,还应当设立一定的限权机制。     

Shame, Guilt and Remorse: Implications for Offender Populations

The emotions shame and guilt may represent a critical stepping stone in the rehabilitation process. Often referred to as "moral" emotions owing to their presumed role in promoting altruistic behavior and inhibiting antisocial behaviors, shame and guilt provide potentially exciting points of intervention with offenders. In this article, we describe current psychological theory and research that underscores important differences between shame and guilt. We note parallels between psychologists' conceptions of guilt and shame, and criminologists' conceptions of reintegrative and disintegrative shaming. We summarize recent research investigating the implications of these moral emotions for criminal and risky behavior, with special emphasis on the handful of studies conducted with actual offenders. We conclude with a discussion of implications for treatment in criminal justice settings.     

Loneliness and associated violent antisocial behavior: analysis of the case reports of Jeffrey Dahmer and Dennis Nilsen

It can be theorized that loneliness plays a significant role in the development and continuation of violent, antisocial attitudes and behavior. Analysis of case reports of two serial killers, Dennis Nilsen and Jeffrey Dahmer, indicate that there is evidence for such a link. In this article, a list of significant correlates of loneliness and antisocial behavior is presented. This may be useful for the assessment of possible dangerousness and in the development of prevention and intervention programs. Suggestions are made for the adequate treatment of loneliness and correlated violent, antisocial behavior. A need is recognized for more research into the psychosocial, emotional, neurobiological, cultural, and ethnic determinants of loneliness and their correlation to specific antisocial and/or criminal behavior.     

许霆案应为“民事侵权损害赔偿案”的理析及启示

许霆案判决之误的原因,该案的民/刑违法属性差异,采取证伪与证成并举的方法,论证该案作为"刑事犯罪案"的不成立和作为"民事侵权案"的成立。许霆案引致的"刑事犯罪与民事侵权的关系"、"刑事理论与刑事实践的关系"、"刑事实践与刑事政策的关系"等问题,为我们提供了如何会通法治的若干启示。     

"Too stubborn to ever be governed by enforced insanity": Some therapeutic jurisprudence dilemmas in the representation of criminal defendants in incompetency and insanity cases

Little attention has been paid to the importance of the relationship between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially acceptable, and is based predominantly upon stereotype, myth, superstition, and deindividualization. It is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process. This paper examines the literature that seeks to apply TJ principles to the criminal law process in general, drawing mostly on the work of Professor David Wexler. It considers why the lack of attention that I have referred to already is surprising (given TJ's mandate and the fact that many TJ issues are inevitably raised in any insanity or IST case). The paper then considers why this lack of attention is not surprising, given the omnipresence of sanism. It will consider some of the actual counseling issues that might arise in these contexts, and offer some suggestions to lawyers representing clients in cases in which mental status issues may be raised. The paper concludes that we must rigorously apply therapeutic jurisprudence principles to these issues, so as to strip away sanist behavior, pretextual reasoning and teleological decision making from the criminal competency and responsibility processes, so as to enable us to confront the pretextual use of social science data in an open and meaningful way. This gambit would also allow us to address-in a more successful way than has ever yet been done-the problems raised by the omnipresence of ineffective counsel in cases involving defendants with mental disabilities.