Judicial Independence across Democratic Regimes: Understanding the Varying Impact of Political Competition

One of the most prominent explanations of the creation and maintenance of independent judiciary is the “insurance theory” that proposes a positive relationship between political competition and judicial independence. But, does intense political competition inevitably lead to higher levels of judicial independence across all types of democracies? Conducting a large‐N cross‐country analysis over 97 democratic countries, this study shows that as democratic quality across countries changes, the impact of political competition on judicial independence changes as well. The empirical findings reveal that while in advanced democracies high levels of political competition enhances judicial independence, in developing democracies political competition significantly hampers the independence of the courts.     

民事督促起诉若干问题研究

民事督促起诉本质上属于检察建议范畴.检察建议由大而泛的模式向以细化为手段的策略转变的现实需要以及国有资产流失和社会公共利益受损失管的客观现实是催生民事督促起诉制度的深层背景.对开展民事督促起诉工作中碰到的条件范围、诉讼时效、被督促单位处分权、检察机关调查取证等实际问题必须予以厘清.从我国的现实需要来看,除了亟待立法上的确认外,在开展民事督促起诉中,应当建立与民事支持起诉、民事公益诉讼、职务犯罪侦查相协调的机制.     

Engaging With Criminal Prosecution: The Victim's Perspective

Despite more than a decade of policies that encourage prosecutors to proceed without the victim's input or actions in cases of intimate partner violence (IPV), prosecutors still often rely on the victim's participation to move a case forward. The purpose of this study was to identify the barriers and motivators influencing female IPV victims' engagement with the criminal justice system and their preferences regarding prosecution. Findings from focus groups with women who had experienced police response to IPV revealed that women wanted the violence to end but faced numerous barriers to engaging with the criminal prosecution process. The dominant voice favored police and prosecutors taking action toward prosecution without depending solely or heavily on the victim's active participation.     

International Prosecution and National Bureaucracy: The Contest to Define International Practices Within the Danish Prosecution Service

This article explores how international ideals and practices of law enforcement come into conflict with national bureaucracies. Drawing on original interviews, the investigation demonstrates how the competition to define the role of international prosecution impacted career strategies as well as the actual administration of criminal law within the Danish Prosecution Service (DPS). The analysis shows that this competition is embodied in two competing groups of prosecutors situated in a wider national bureaucracy—itself subject to transformations that affect the very stakes of the contest to define the international. While the institutionalists build careers closely attuned to the systemic and increasingly lean‐management‐inspired requirements of the DPS, the dissident and consequently unsettled position of the activists leads them to craft alternative career strategies closely related to the emergence of new international fields of criminal law.     

核准追诉制度实务问题研究

核准追诉制度根源于追诉时效制度。追诉时效制度是世界各国刑法普遍规定的一项制度,是现代国家对刑事追诉权的自我约束和限制。近年来,我国每年都有一些超过20年追诉时效期限的刑事案件提请最高人民检察院核准追诉。由于法律规定得比较宏观原则,且学界对此研究不多,核准追诉案件办理过程中存在不少困惑和问题。笔者就这些问题做了一些初步的归纳和分析研究,希望对司法实务有所裨益,以期推进核准追诉制度的科学化。     

Stability in Parliamentary Regimes: The Italian Case

Abstract: In this article, we distinguish legislative stability from government stability and argue that the character of the relationship that exists between them is a complex one in which various combinations are possible. We focus on Italy because of the manner in which it has combined legislative stability with government instability. Our findings indicate that the relationship between legislative and government stability in Italy is best seen as curvilinear, that the analysis of government stability must take the number of governments as well as the duration of governments into account, and that the attributes of the party system that stabilize the legislature destabilize governments. Given these findings, we discuss their implications for explaining stability in parliamentary regimes in terms of events, “strong parties,” and strategic calculation. We conclude that legislative stability should not be treated simply as a secondary or derivative effect of government stability and that Italy can serve as a benchmark for further study of the nature and determinants of the relationship between the two in other parliamentary systems.     

论检察机关支持起诉

支持起诉是我国民事诉讼法的一项原则,源自前苏联对民事诉讼的社会干预理论.但是对支持起诉作为民事诉讼基本原则的价值所在与制度构造,学界一直存在争议.目前,检察机关正在开展支持起诉的试点与探索,对此,有必要进行理论上的总结与分析.笔者主张对支持起诉原则进行改造,构建检察机关参与民事诉讼的制度.     

Problems of Democratic Accountability in Network and Multilevel Governance

Abstract:  Most studies converge on the growth of processes of 'multilevel governance' (MLG) in policy making, related to the often combined trends towards supranationalism and regionalism. Such processes are usually analysed under the angle of their efficiency, while their impact on the quality of democracy is neglected. This article first defines the concepts of multilevel governance and accountability, and then identifies the various dimensions of the latter. It further argues that MLG generates novel forms of accountability, but undermines its democratic dimension mainly for the following reasons: the weak visibility of MLG networks, their selective composition and the prevalence of peer over public forms of accountability.     

公诉环节程序分流机制探微

随着刑事诉讼效率价值的凸显以及轻缓化刑事政策和教育刑理论的兴起,越来越多的国家已经否定了案件不分大小、罪行不分轻重,一概必须将案件起诉的做法.公诉环节程序分流机制的建立是以起诉便宜主义为前提,赋予检察官不起诉裁量权.该机制的建立不仅是各国刑事诉讼制度改革的必然趋势,而且也是联合国刑事司法准则的基本要求.     

The Democratic Costs of Constitutionalisation: The European Case

There is little doubt that the European Union suffers from a legitimacy deficit. However, the causes of this deficit and, as a consequence, the remedies are contested. This article wants to show that an important, but often overlooked, cause for the legitimacy deficit lies in the overconstitutionalization of the EU. The European Treaties have been constitutionalized by the ECJ, but are full of provisions that would be ordinary law in states. Constitutionalization means de‐politicization. What has been regulated on the constitutional level is no longer open for political decision‐making. Thus, in the EU political decisions of high salience are not only withdrawn from the democratically legitimized institutions, but also immunized against political correction. Therefore, the consequences from the constitutionalization have to be drawn: The Treaties should be reduced to those norms that reflect the functions of a constitution, whereas all the other parts have to be downgraded to the level of secondary law.     

King Charls His Case: The Intended Prosecution of Charles I

Charles I was put to death without having pleaded to the charges preferred against him during his trial. This article examines the case that his prosecutor later said he would have opened, had the king entered a plea. John Cook's case was predictably forthright in its denunciation of the accused. On the other hand, it has some highly significant omissions; some of it was legally and factually hopeless, and much of the rest invited fairly obvious responses; whilst its exposition was much more contentious than one might expect from a case for the prosecution of a man whose guilt had already been pronounced ‘notorious’. Rather than simply setting out a wholly unsatisfactory indictment of the king's alleged ‘guilt’, as a mere prelude to the shedding of his blood, Cook's true aim appears to have been to goad the king into making, before the eyes of the watching world, a case in his own defence sufficient to enable the king's judges, having heard what he might have to say, and subject to ‘the merit of the Cause’, to hand down some sentence other than death - all as the Act erecting the high court of justice authorized them to do.     

论检察机关撤回起诉的法律效力

撤回起诉的法律效力关系到刑事诉讼基本理念的贯彻落实,效力特征呈现出阶段性,而传统理论却倾向于关注一事不再理,普遍疏于对撤回起诉所产生法律效力的整体性评价。从诉讼程序的运行轨迹来看,撤回起诉的申请正式提交后,检察机关与法院的行为皆应受该申请的拘束;法院做出准予撤回起诉的裁定并宣告后,庭审程序中止,被告人可对该裁定提起上诉;裁定生效后,审理程序终止,检察机关应当做出不起诉决定或者退回公安机关重新侦查;重新侦查时应当确保强制措施的正当适用,发现新事实或新证据的,检察机关可再行起诉。     

人民本位:马克思主义民主话语的立论前提

马克思主义的民主话语坚持"人民本位",拒斥"个人本位",但它决不是将个人消弭在人民的普遍性概念之中,而是有着对个人本位民主话语的清醒认识。它既看到后者对个人自由的守护,也看到它固有缺陷对个人自由的限度。首先,作为存在论前提,人民本位规定了马克思主义民主话语不仅要求人民的"在场",更强调人民的"出场"。其次,作为本质论前提,坚持人民本位的民主话语实现的是分属于不同家庭、阶层与社群中的人民的"有机团结",即有差异的同一。最后,作为目的论前提,坚持人民本位的民主话语是要解决个体与类,特殊利益与普遍利益的历史性矛盾,以实现人在自由人联合体中的彻底解放。关于马克思主义民主话语立论前提的讨论,有助于当代中国的民主政治建设贯彻以人民为中心的理念。     

提起公诉证据标准之内在机理

<正>不当起诉不仅会严重破坏公民的正常生活,而且会使国家的政治秩序、社会秩序和经济秩序陷于混乱。为了防止公诉权滥用,保障犯罪嫌疑人免受不当起诉,提起公诉必须具有足够的证据证明犯罪嫌疑人涉嫌指控的犯罪。“仅有嫌疑不足以授权国家超越自然权利干涉公民的生活,将他们送交审判。”而且,“没有社会能够忍受一个如此无情的法定起诉原则:无论指控证据多么薄弱,检察官都需要对每一个案件提起公诉。”这就提出了如何构建提起公诉的证据标准(以下简称“公诉证据标准”)的问题。近年来,不少学者对我国公诉证据标准进行了深刻而卓有见地的反思,学界对维持还是降低我国公诉证据标准的证明程度产生争议。但对国外(特别是日本)的公诉证据标准还存在误识,对各国公诉证据标准的决定因素缺乏基于刑事诉讼体系的系统化考察。笔者希望能借此方法,在充分解释各国公诉证据标准成因的基础上,解释、论证我国的公诉证据标准。