解读包公故事中的罪与罚

包公听讼断狱故事 ,突出的也是“罪与罚”的价值取向。正是基于这一原因 ,本稿在讨论包公故事中的法律问题时 ,首先标举“罪与罚”这个题目。除此之外 ,这一安排也有先“实体法”后“程序法”的技术考虑。值得引起我们思考的是 :在现实社会生活中 ,纠纷无论如何不会出现民事纠纷与刑事犯罪之间比例如此“悬殊”的情形。那末 ,何以馀以故事特别强调“罪与罚”这一主题呢 ?这正是本文着重研究的     

清明时节说包公:包公“司法之神”形象的形成动因与观念基础

包公作为中国百姓心目中的"司法之神",其形象是通过宋元明清近千年的层累叠加,通过笔记、话本、杂剧、小说等载体糅合铸就,由老百姓在生活中自发形成。除了传统清官情结和包公个人人格魅力之外,传统司法文化对人格道德力量的褒许,赵宋以降中国老百姓对司法公正的期待,赵宋鉴于司法弊政而进行的司法改革,以及随着商品经济发展而产生的司法职业化趋向,是包公之所以成神的不可忽视的重要动因。包公作为"司法之神",其形象所蕴含的传统司法公正观念就是清官、清明和青天观念,就是在司法活动中清正廉洁,明法致公,为民请命。包公作为司法公正的象征,其形象是通过与权力、金钱、亲情的反复博弈逐渐丰满起来的,这三者也是导致传统司法不公的最主要因素。认识包公故事中的百姓心声和包公成神的内在动因具有重要的理论和现实意义。     

“断狱平”或“持法平”：中国古代司法的价值标准——“听讼明”、“断狱平”系列研究之一

断狱平或持法平是中国古代司法的价值标准之一;在思想逻辑上,它是儒家对法家的清算,是儒家思想对中国司法打下的深刻印记;在历史发展上,它有汉代前期和中期的两个节点,汉以后又有制度控制和政策导向两方面的坚持;断狱平的本质指恕、宽、轻,皆与深、刻相对,同时也指合法处断;其特征是重辨冤释诬,重通情执法,具有人民性的一面。中国古代司法,基本上是在这一价值标准下展开,并在这一价值追求中运作的。     

解说包公的吏治思想与法律思想

本稿旨在讨论以下两个问题：在中国传统官僚制度与法律制度的语境里，包公思考吏治问题和法律问题有何特点？与此相关，在北宋仁宗时代吏治渐趋（女+俞）情与法律逐步松弛的语境里，包公又有什么具体的解决方案？本稿的分析思路，不．求面面俱到，而是旨在梳理包公有关思想的基本结构。这是以往包公研究相对忽略的解释路径。     

汉律中的县道官“断狱”权探析

县、道是汉代地方郡县二级制下平级的基础政区,县道官是县、道的行政司法长官,有广泛的刑事司法权,"断狱"权是县道官刑事司法权的核心部份。县道官"令、长、丞"有"断狱"权,他们对"死罪"、"过失杀"、"戏而杀人"案件有初审权,对非死罪案件有终审权;县道官"断狱"的法律程序包括"传《爰书》"、"讯鞫"、"论当"等部分;县道官"擅移狱"、"鞠狱故纵"、"不直"、"弗穷审"须承担刑事责任。汉代县道官"断狱"权的法律规定呈现出权责分明的总体特点。     

我国奴隶社会断狱基本原则初探

我国奴隶社会断狱基本原则初探宁汉林奴隶社会，＂狱＂的含义是＂告以罪名＂。而＂告以罪名＂，就是提起刑事追诉。＂断狱＂就是依据刑书简册审理裁决＂告以罪名＂的刑事案件，相当于现代刑事诉讼中的审判。审理判决，是刑事诉讼的核心，归之为＂断狱＂，这是人类社会处于...     

法家思想与中国古代刑讯制度

中国古代的证据制度以重视口供以及与此相关的刑讯逼供为其突出特征,其中刑讯逼供历经战国时期的发展至秦朝成为一种制度化的断狱手段,这与法家思想的理论支持是密切相关的,尤其是法家好利恶害的人性论和重刑主义思想为刑讯的发展提供了哲学基础和理论支撑。本文拟就此问题进行简要的论述。     

铁面无私 执法如山——记蔡成钧同志的先进事迹

多少年来,人们一提到包拯、海瑞,无不称赞他们刚直不阿,执法如山。然而,他们毕竟是经过艺术加工了的形象。这里,我们介绍一个群众称为“共产党的包公”的人。他,就是四川省内江地区中级人民法院院长、共产党员蔡成钧。     

吴广春：包公故里大贪官

合肥市包河区因宋代名臣包拯而得名，被誉为“安徽第一城区”，“包公故里，滨湖新城”——这是包河人对外亮出的“名片”。 作为包河区第一位区委书记，吴广春在区里召开的第一次党代会上，不提出要把以清正廉洁为主要内涵的包公文化，作为廉政文化建设的一项重要内容，沐“清官文化”，行“廉洁教育”，努力在全区上下形成“以廉为荣、以贪为耻”的道德价值观念和社会风尚，自觉维护“包公故里”的良好对外形象。 在逢会必谈廉的同时，吴广春每年都要带着属下到辖区内的包公祠，向“包青天”宣誓要“为俭朴之官，作清廉表率”。     

受益人害被保险人 保险金该如何处分

开场白:锣鼓一响,《普法剧场》拉开大幕,戏曲人物中典型的清官形象 铁面无私的包公、刚直不阿的海瑞、不惧权贵的徐九经再次粉墨登场,升堂 判案。究竟谁会在现代法庭上断案时更胜一筹呢?请看--     

National Security vs Criminal law. Perspectives,Doubts and Concerns on the Criminalisation of Organised Crime in England and Wales

This paper will interpret and critically analyse the new offence for organised crime in England and Wales (Section 45 of the Serious Crime Act 2015) from a criminological perspective in light of evidence found in research in the country. It will argue that changes in the law relate to changes in political narratives rather than to variations in the criminal panorama of organised crime. It will discuss these changes within three perspectives, which address various levels of concern: a narrative perspective, which reflects on the overlapping of meanings in the use of the words ‘organised crime’; an evolution perspective, which reflects on the origins of the new participation offences with reference to both national and international pressures; a management perspective, which reflects on some of the immediate effects of the new offences of organised crime on the criminal justice system. This paper will conclude that political narratives have indeed influenced criminal policy, while there is no significant change in the phenomenon of organised crime to justify such narratives.     

FUTURE CHILD'S RIGHTS IN NEW REPRODUCTIVE TECHNOLOGY:THINKING OUTSIDE THE TUBE AND MAINTAINING THE CONNECTIONS

This article considers whether children born through assisted human reproduction are entitled to information about their biological origins. It examines the issue both from a clinical perspective, citing social science research and the personal narratives of donor‐conceived children, and from a legal perspective, outlining the extent of a child's “right to know” in different jurisdictions. The article suggests that a uniform legal approach is needed that will recognize the right of all children to access details about their identity and conception, for the sake of their psychological well‐being. The article includes a fact scenario that considers the situation of a donor‐conceived child who has become the subject of a custody dispute, and who has not been told the circumstances of his conception.     

European Citizenship and EU Immigration: A Demoi‐cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude

European citizenship entails, for EU nationals, a right to belong across borders. This article questions the implications of this latter right for the status of third country nationals in the EU. It contributes to address a gap between the literature on European citizenship and the literature on the admission and civic integration of third country nationals. The article begins by tracing a disconnect in the rules and narratives on admission and naturalisation of third country nationals in the EU. This is a disconnect between logics of individual rights protection, which European citizenship infiltrates, and logics of state sovereignty and governmental discretion, which otherwise dominate relevant rules and narratives. The article relies on the political science literature on mutual recognition and demoicracy to reinterpret European citizenship's norm of belonging across borders so as to reconcile the disconnect. Ultimately, the theoretical bridge that the article draws between citizenship narratives and immigration narratives offers a novel perspective on the tension between liberal values and integration discourses in Europe. It also sets out a possible frame to begin rethinking rules of engagement and cooperation in the context of the EU common immigration policy.     

Aboriginal oral testimony,hearsay rule and the reception theory of admissibility

Aboriginal peoples title claims are presumed upon spatial and time connections to the lands of their ancestors. In making their submissions, litigants have to circumvent the rule against hearsay and rely upon oral narratives to substantiate their claims of customary ties to land. The obstacles they face is that evidence based on informal anecdotes can cause problems in common law courts, which have long been dependent on textual evidence for probative value. In many Native cultures the idea of time is cyclical, while in the Judeo-Christian calendar time is linear. There is also the fact that oral narratives cannot be viewed in the abstract and the histories are closely linked to inter-generational continuity. The perspective of a narrator is relevant as the sources are often repositories of observation, knowledge and personal belief rather than clear factual understanding of the issue involved. This paper argues for the receptive theory of oral evidence to be adopted in common law courts, which would lead to a fair hearing of Aboriginal claims to land title in Australian and Canadian courts. The paper will distinguish the courts’ current approach to oral testimony submitted by aboriginal people and raise the possibility of an integrated approach based on the recourse to ‘episteme’, which is the appreciation derived from synthesis that accepts that several methodologies may exist and interact at the same time by being parts of various knowledge systems.     

Violent men’s paths to batterer intervention programmes: masculinity,turning points and narrative selves

Drawing on interviews with voluntary participants in intervention programmes for perpetrators of intimate partner violence in Sweden, the present article analyses violent men’s turning-point stories, that is, their narratives of deciding to start and starting treatment. Three types of turning-point stories are identified: narratives that describe men recognizing their violence either before or during treatment, and narratives of returning to treatment. Through these stories, the men not only present reasons for joining therapy, but also produce gendered narrative selves. In particular they present themselves as morally ‘good’ and self-conscious men by simultaneously acknowledging their abusive behaviour and distancing themselves from being violent men.     

Human trafficking revisited: legal,enforcement and ethnographic narratives on sex trafficking to Western Europe

In this paper we focus on the ways ‘victims’ and ‘perpetrators’ are imagined in the narratives on women who have been trafficked to West Europe for sexual exploitation. Three specific domains: international/national law, local law enforcement and ethnographic academic perspective are particularly important as they strongly influence political reaction to trafficking and describe the phenomenon from the perspective of the individuals concerned. In our analysis, an explanation of the diversity of the perceptions in these three domains is provided.     

Mortuuspolitics: politicization of the dead,capitalism, and inequality

Capitalism has led to the appropriation of oppressed groups, their experiences and narratives. We believe this includes narratives and given value of the dead where there remains a continuation of inequalities of life unto death and being dead. Specifically, we suggest that the discrepancy of the value of the dead is the result of the links between power, politics, and hegemonic discourse embedded in neoliberalism that propagate and reify unequal power edifices that value some groups over others, in life and death, what we refer to as mortuuspolitics. The State, entrenched within the capitalistic neoliberal definition of value, also decides on the value or non-value of the dead.     

Narrative roles in criminal action: An integrative framework for differentiating offenders

Purpose. The proposal that offenders’ narratives help to shape criminal action raises the possibility of a finite set of narrative themes for distinguishing offenders. The present paper seeks to articulate narrative themes that may be active within the roles offenders adopt during offending events. Possible themes may be derived from studies of fundamental narratives in literary criticism, notably Frye (1957) . Within personality psychology, McAdams (1993) has also argued for a restricted set of personal narratives in any given culture produced by the dominant dimensions of Potency and Intimacy. Methods. The sub‐set of narratives on which offenders’ draw can be explored through the roles criminals see themselves as playing during offending episodes. Case study interviews were therefore content analysed to illustrate offence roles based in narrative themes and their cognitive, affective, and identity components. Results. These considerations suggest that four thematic narrative roles can be distinguished: Professional, Victim, Tragic Hero, and a Revengeful Mission. Distinct patterns of cognitive distortion, affective, and identity components are proposed within these four narrative roles. Conclusion. The Narrative Offence Roles specified and illustrated in the present paper offer hypotheses for empirical study and the possibility of a new aetiological perspective in criminology.