行政裁量:羁束与自由的迷思

在大陆法系行政法学中,行政裁量与羁束行政相对,又被分为羁束裁量和自由裁量。羁束与裁量的区分有其存在的必要,羁束裁量和自由裁量的区分在一定历史时期里也有其合理之处,但其间的区分标准并不清晰。随着司法审查的发展和人权保障理念的深化,这种区分日益相对化,故而我们需要走出这种历史类型的迷思,另寻其他更合理的认知路径。     

The Mental-Mental Muddle and Work Comp in Oregon. II

To summarize, in the state of Oregon at this time, mental illness caused by employment is covered by workers' compensation insurance. There have recently been some legislative attempts to seriously restrict this and there probably will be some more in the future. As the law now stands, the job stress must be the major contributing cause as measured against any off the job stress. The on the job events producing the stress must exist in reality. A stress emanating primarily from a worker's misperception or paranoid thinking does not constitute an acceptable causative agent. Obviously it is not always that easy to distinguish between on the job causes and off the job causes and objective stresses and merely perceived stresses. And what about the individual who has faulty perceptions which lead to actions that provoke an objective response? As a psychiatrist, I am glad to see more recognition given to mental illness caused by the work place. I applaud the Oregon Supreme Court for pointing out that an organization has an obligation to somehow deal with stress-producing supervisors. I think we have to be on guard against those forces working through the legislature which try to minimize or deny the importance of mental illness. At the same time, though, we have to try to enlighten rather than confuse. Our expertise is in diagnosing and treating, not in constructing legal terminology. In my evaluation of the Leary case, I tried to explain to the best of my ability just what was going on.(ABSTRACT TRUNCATED AT 250 WORDS)     

Deterrence and avoidance

This paper explores the effects of public enforcement, in general, and punishment, in particular, on crime levels if offenders can engage in avoidance activities. Avoidance reduces the probability or magnitude of punishment. In general, offenders can reduce their expected punishment either by substituting legal activities for criminal activities (the deterrence effect) or by increasing avoidance activities. This paper shows that increasing the direct costs of crime – by either increasing punishment or enforcement efforts – does not necessarily deter criminal activity and may actually trigger increased crime if avoidance is possible. Furthermore, this paper shows that increasing the opportunity costs of crime (e.g. by subsidizing legal alternatives or through educational and vocational programs) reduces both crime and avoidance and thus, in this respect, is advantageous. The conditions for these outcomes are identified, the economic mechanisms are explained, and an underlying intuitive approach for these results is proposed.     

Deterrence and arrest ratios

In the limited research on the origins of sanction threat perceptions, researchers have focused on either the effects of actively engaging in crime or the effects of formal sanctioning but rarely on both (i.e., the arrest ratio or the number of arrests relative to the number of crimes committed). This article extends this line of research by using a sample of Colorado inmates and measures arrest ratios and sanction perceptions for eight different crime types. Analyses reveal that the offenders report both significant experiential and arrest ratio effects. Theoretical and policy implications, limitations, and directions for future research are outlined.     

试论侵权行为法之补偿功能与威慑功能

侵权行为法的功能就是侵权行为法的任务与目的,即侵权行为法在社会生活中发挥的作用。只有正确认识侵权行为法的功能,才能建立起科学合理的、符合本国国情的侵权行为法体系、规则与制度。当前,我国正在抓紧制定侵权行为法,因此正确认识侵权行为法的功能就显得愈发重要。     

Deterrence and brutalization: The dual effects of executions

On April 21, 1992, California received wide national attention when Robert Alton Harris was executed in the gas chamber at San Quentin. Harris's execution marked a reintroduction of the death penalty in California after a 25-year moratorium. We use weekly time-series data on the level and type of criminal homicide incidents in the state from 1989 through 1995 to exploit the quasi-experimental qualities of this naturally occurring “experiment,” and assess the impact of Harris's execution on the incidence of homicide. As in several recent studies, we disaggregate criminal homicides into forms of murder highly likely to be affected by capital punishment: felony-murders of nonstrangers, for which we predict a deterrent effect, and argument-murders of strangers, for which we predict a brutalization effect. On the basis of an autoregressive integrated moving-average approach to time-series analysis, we find (as predicted) a significant decline in the level of nonstranger felony-murders and a significant increase in the level of argument-based murders of strangers in the period following the execution. Moreover, the increase in argument-based stranger murders associated with the Harris execution endured across a subsequent execution period, while the decline in nonstranger felony-murders shifted to the subsequent execution.     

The Sanctions-Perceptions Link in a Model of School-based Deterrence

This paper reports a study examining associations between objective indicators of the level of discipline within schools and students’ perceptions of the strictness of discipline. Data were analyzed from the National Education Longitudinal Survey (NELS), a nationally representative panel study of eighth grade students attending public and private schools in 1988. We find evidence for an association between objective and perceived risk of discipline in models that examine the covariation of these two constructs at several cross sections, and in models of change in perceptions as a function of change in school sanctioning climate. Moreover, these associations were strongest in small and less disordered schools.

Deterrence and the tipping effect

Previous research has focused on certaintyznty of punishment as one. factor. upon which any dzterrent effect of punishment might be contingent and Auggested that it must reach a critical tipping level before the deterrent effect becomes evident. Using data on index crimes and clearance. rates for. Virginia cities and counties, bupport was found for both the. deterrent effect and the exlstenee of a tipping level. Attention was directed towand a more precise specification of the form of the tipping effect, suggesting that there is a single critical tipping level and that it occurs at a relatively low level of certainty of punihment.     

Deterrence: A Panel Analysis

Recently, two research groups have tested the deterrence model using longitudinal designs (Saltzman, et al. 1982; Minor and Harry 1982). They suggest that most cross-sectional survey research on deterrence is so methodologically flawed as to be arguably irrelevant. Moreover, using a research strategy which is clearly more appropriate to test the model, they uncover no evidence of deterrent effects. This paper represents a partial replication and extension of these studies, using two-wave panel data from a sample of 2,147 adolescents. Unlike the prior panel research, the findings here support the viability of the deterrence model. They also indicate that there are significant differences in responsiveness to the perceived threat of sanctioning in terms of sociodemographic characteristics of potential offenders. The methodological and theoretical implications of the research are discussed.     

The Deterrence Hypothesis and Picking Pockets at the Pickpocket's Hanging

The tenet that harsher penalties could substantially reducecrime rates rests on the assumption that currently active criminalsweigh the costs and benefits of their contemplated acts. Existingand proposed crime strategies exhibit this belief, as does alarge and growing segment of the crime literature. This studyexamines the premise that criminals make informed and calculateddecisions. The findings suggest that 76% of active criminalsand 89% of the most violent criminals either perceive no riskof apprehension or are incognizant of the likely punishmentsfor their crimes.     

违法阻却事由与犯罪构成体系

违法与责任是犯罪的两大支柱,认定犯罪应当从违法到责任;是否存在违法阻却事由,属于是否具有违法性的判断,因此,应当在违法构成要件之后,接着讨论违法阻却事由。在考察全部构成要件之后才讨论违法阻却事由的做法,不利于对违法性的判断,也不利于保障行为人的自由。     

Paradigm Muddle: The Threat to Restorative Justice Posed by Its Merger with Community Justice

The restorative justice movement has great potential to reform the way society responds to crime and wrongdoing. One might logically assume that the greatest challenge to the new restorative justice paradigm is the traditional punitive criminal justice paradigm itself. A more immediate threat, however, is posed by merging community justice, another approach to reforming the justice system, with restorative justice. Community justice has superficial similarities to restorative justice but relies on the underlying authoritarian assumptions of the existing criminal justice system and on processes that exclude most of those individuals directly affected by the offense. This paper clarifies and contrasts the key elements of both the restorative justice and the community justice paradigms and explains the threat to restorative justice posed by combining and confusing the two.     

The Impact of Deterrence Policies on Reckless Driving: The Case of Portugal

In this paper, we test the effect of three different criminal deterrence theory policy tools: criminal certainty, severity, and celerity of punishment. Whereas most criminal deterrence studies in this field focus on the former two components of deterrence theory, this study also examines the potential deterrent effect of the latter component. Using a time-series design with monthly data, we estimate the effects of an increase in the threat of punishment for traffic offenses resulting from a general increase in fines for traffic offenses, an increase in the probability of getting caught with a blood-alcohol concentration (BAC) level outside the legal limits, and the enactment of an “on-the-spot” fine payment policy in Portugal. We find strong evidence to support a severity effect. An increase in the statutory severity of sentence maxima for traffic violations leads to a decrease in accident and injury rates—approximately an average 0.5 percent reduction in monthly accident and injury rates. Changes in the BAC levels and the mandatory swift payment policy did not produce any convincing deterrence impact.

Deterrence and Individual Differences Among Convicted Offenders

Conflicting evidence exists on how criminal propensity moderates deterrent effects, and there is little empirical evidence on this issue from relatively experienced offenders. This study tested how variation in criminal propensity (operationalized as “low self-control”) moderates deterrent effects in a sample of convicted offenders in New Jersey’s Intensive Supervision Program in 1989 and 1990. Offenders’ perceptions of the risks and consequences from violating ISP were associated with whether they successfully completed ISP. Moreover, lower self-control did not diminish, and if anything, enhanced these deterrent effects.

民事责任的预防功能

本文以经济学中的价格市场理论和外部性理论为工具,从预防角度考察民事责任（以损害赔偿为主）的社会功能,并指出为达到最佳预防目的,在两种不同的情况下,致害人应负损害赔偿数额的原理与计算方法。