德日刑法中的可罚性理论

在德日刑法中,作为犯罪成立要件的可罚性是在构成要件符合性、违法性和责任之外,对行为进行的"值得处罚"这种实质的评价.可罚性的要素包括客观的处罚条件和一身的处罚阻却事由.     

论我国刑法中未成年人的刑事责任

未成年人犯罪问题已日益为国际社会及世界各国所关注。未成年人的身心特点决定了对其犯罪应采用有别于成年人犯罪的刑事责任追究制度。我国现行刑法对未成年人犯罪明确规定了从宽处罚和不适用死刑的原则。从有助于我国未成年人犯罪刑事政策的贯彻落实考虑 ,本文对未成年人犯罪刑事责任和从宽处罚的原因进行探讨 ,并对“降低刑事责任年龄”观点提出异议 ,为司法实践正确解决未成年人犯罪的刑事责任提出新的思路。     

Donald Davidson and section 2.01 of the model penal code

Abstract

In a 1967 article that is considered a classic of criminal justice scholarship, Abraham Blumberg portrayed defense attorneys for accused offenders as more responsive to the demands of the court entourage for smooth and expeditious functioning than to the needs of their clients for a stalwart representation. The article suggests that Blumberg's view, while provocative and with a considerable element of accuracy, may have reflected a somewhat jaundiced and overstated perspective when he was on the verge of leaving law practice for academia. The article also speculates about the current accuracy of Blumberg's observations.     

Medico-legal assessment of malpractice under the Austrian penal code

In recent years, Austria has seen some change in the approach to errors in medical practice. The privileged position of the medical practitioner within the meaning of the former penal code, in force till 1974, no longer exists; however, errors leading to insignificant damage to the patient's health may remain free from punishment. In any case, nowadays, the categories of the dogmatics of negligence are applied to the doctor's professional activity. The traditional concept of 'malpractice' as formerly applied has virtually been displaced from the medico-legal assessment of an error in medical practice. The patient-doctor relationship based on trust is increasingly being supplemented by legal norms. Accordingly, the doctor's liability appears increasingly as the doctor's typical professional risk. Yet, in Austria, the doctor's liability is still kept within limits. The situation, with some cases in point, is analysed and described.     

Relationships and sexuality of imprisoned men in the German penal system--a survey of inmates in a Berlin prison

The lack of concrete scientific data on the sexual behavior of inmates in German prisons is surprising, especially given the extant international scholarship on prison culture and sexual violence. Historically, the most influential publications were Clemmer's "The Prison Community", and Sykes's "The Society of Captives", which both addressed the importance of sexual deprivation and analyzed the impact of sexual victimization on prisoners. Different forms of homosexual contact between inmates include prostitution and "protective pairing", both characterized as "dark" issues--nonconsensual sexual acts--which still have not been scientifically researched. The United States enacted the Prison Rape Elimination Act, 2003, revealing nationwide data on the prevalence of sexual assault within correctional facilities. Prison inmates suffer not only from separation from their spouses or partners, but also from sexual harassment, extortion, and the threat of rape, which has multiple implications for their mental and physical health. This article presents the first German study to record data about the relationships and sexuality of imprisoned men, and was conducted in an adult correctional facility for long-term prisoners in Berlin-Tegel. The survey, which is based on results from a questionnaire taken by voluntary study participants, had a special focus on the occurrence of consensual homoerotic contacts between heterosexual inmates. The emphasis was on the potential impact of such contact on role behavior during confinement, as well as the impact on sexual identity after release. The survey revealed the first data on the incidence and prevalence of sexual violence and coercion within correctional facilities. This article presents the results of this survey for the first time.     

The rise of the penal state in Latin America

The recent work of Loïc Wacquant identified the emergence of the penal state as a core feature of the global expansion of neoliberalism and the neoliberal government urban marginality. Drawing on Wacquant’s theoretical and conceptual reflections, this article analyses the emergence of a Latin American form of penal statecraft. By taking an in-depth look at the increasing criminalization of urban marginality in contemporary Latin America as well as the related developments in the local prison system, the single most important institutional expression of the Latin American penal state, important commonalities and differences between the penal statecraft experiments throughout Latin America and the countries of the ‘developed world’ are highlighted.     

刑事法与民事法的冲突与融合——菲律宾刑法典中的“民事责任”条款及其启示

我国刑事法在犯罪人承担民事责任方面,无论是范围还是主体,都与民事法目前的立法存在着较大的冲突。菲律宾在刑法典中设置"民事责任"条款的立法经验,对我国刑事法与民事法在该领域的融合具有重大的启示意义。我国应构建"犯罪人承担刑事责任与民事责任并重"的刑事司法模式,把犯罪人承担民事责任的主体和范围扩展为与单纯的侵权民事责任的主体和范围保持一致。     

The development of the penal bond with conditional defeasance

The development of the penal bond with endorsed conditional defeasance presents a problem because the earliest monetary penalties in English contracts took the form of straight-forward penalty clauses. It is hard to see how the convoluted penal bond developed from such penalty clauses. This article traces the development of the penal bond from debt recognizances defeasible by the performance of conditions stated in a separate document. The logic of the defeasible recognizance was carried over to other arrangements including the penal bond with endorsed conditional defeasance.     

Public opinion and penal reform in Britain

The author argues that it is very difficult to seek legitimation and support in public opinion attitudes both for reformers and counter-reformers of the penal system. He disputes the very existence of public opinion itself, and stresses that definitions of crime are often based on an emotional conspiracy whereby the parties involved ignore one another's perception: institutions, offenders, victims, the public, and last but not least, criminologists.     

Sentencing guidelines and penal aims in Minnesota

H. Richard Uviller, Virtual Justice: The Flawed Prosecution of Crime in America, New Haven: Yale University Press, 1996, xvii + 318 pp.     

Finland's penal colonies: The forbearant model and community-based corrections

Community-based corrections is widely heralded as the proper basis for future penal administration. Penal colonies of Finland are employed in this paper to relate changes in society at large to innovation in corrections. The penal colonies were the indirect result of the postwar crisis in Finland and changes brought by industrialization and urbanization. Unprecedented opportunities for solving problems of conventional administration motivated officials to introduce penal colonies as a means of accomodating prisons to the new expectations being imposed on correctional work. The forbearant model is proposed as a hesitant and primitive reaction to pressures to bring corrections into conformity with the trends shaping society at large. This model is useful in analyses of the American movement toward community-based corrections.     

论公安刑事侦查行为与公安具体行政行为的界定

从“没收空调案”谈起,提出正确界定公安刑事侦查行为与公安具体行政行为的问题,其关系到行政诉讼法受案范围。从理论上来讲,两者既有联系,又有区别,但在实践中两者又容易混淆。因此在具体的操作过程中,有必要利用各种方法正确把握两者的界定问题。     

The crime of genetic manipulation with human cloning purpose. A contribution to juridical-dogmatic study of the new art. 324 of the Peru penal code (Part I)]

The autor analyses in detail the criminal regulation related to genetic manipulation with human cloning purposes in Perú.     

Diffuse reflectance infrared Fourier transform spectroscopy (DRIFTS) detection limits for blood on fabric: Orientation and coating uniformity effects

Diffuse reflectance infrared Fourier transform spectroscopy (DRIFTS) was used to analyze four types of forensically relevant fabrics coated with varying dilutions of blood. The blood was applied in two manners, dip coating with a smooth and uniform layer and drip coating with droplets from pipettes. Spectra of neat and dip coated fabrics were acquired using controlled orientations, and these were compared to spectra collected on samples with random orientations. The improved reproducibility seen in visual inspection of the spectra is confirmed by principal component and linear discriminant projections of the spectra, as well as by statistical hypothesis testing. Principal component regression (PCR), using the regions of the IR spectra associated with the amide A/B, I, II, and III vibrational bands (3500–2800, 1650, 1540, and 1350 cm⁻¹), was employed on the more uniform dip coated spectra to estimate limits of detection for blood on two of the four fabrics – acrylic and nylon. These results demonstrate that detection limits for blood on fabrics can be decreased significantly by controlling for the orientation and face of the fabric samples while collecting spectra. Limits of detection for acrylic and nylon were found to be 196 × and 227 × diluted blood, respectively.     

Compatible victims? Prison overcrowding and penal reform in Belgium

The Belgian criminal justice system has recently gone through a period of unprecedented legislative reform. One of the major innovations has been the establishment of a new type of tribunal which is responsible for decision-making and follow-up related to the execution of penal sanctions (tribunal de l’application des peines/strafuitvoeringsrechtbank). This new institution is created and regulated by two pieces of legislation, formally approved in May 2006. The paper discusses the Parliamentary trajectory of this reform and pays special attention to how a victim's perspective (that is, the enactment of certain types of information and hearing rights for certain categories of victims of crime) came to be included in the new regulation. It is argued that one of the most important implications of the whole reform (that is, the future loss of Ministerial control with respect to managing the prison population) has contributed to the legal construction of the victim in the legal proposal as submitted by the Government to the Senate. The provisions in this legal proposal which related to victims of crime needed to be ‘compatible’ with an age-old problem of serious prison overcrowding. The legal proposal, therefore, was oriented towards defining victims in such a way that giving them a role in the post-sentencing phase would not hamper the smooth release of inmates out of the Belgian prison system.