罪刑法定视域中的刑法适用解释

The judicial interpretation of criminal law should be an application interpretation to individual cases that is guided by judges and participated by the prosecutor and the accused, for which the judicial judgment should be combined with the application of criminal law of specific cases, and the criminal precedents should be as a carrier. The Supreme People’s Court should change from the previous practices of issuing normative and abstract interpretation to the dual approaches of the interpretation of criminal law application through direct creation and indirect acknowledgement. Liang Genlin, Professor and Vice Dean of Law School of Peking University and as a visiting professor of University of Tuebingen (2001–2002). His main research focuses on criminal law and criminal policy, and his important publications include “On the Structure of Punishment”, “Liang Genlin’s Review on Criminal Policy, Volume I, Criminal Policy: Standpoint and Category”, “Liang Genlin’s Review on Criminal Policy, Volume II, the Arm of the Law: Expand and Limit”, “Liang Genlin’s Review on Criminal Policy, Volume III, Criminal Sanction: Manner and Choice”. Besides, he has also published over 40 discourses on criminal law and criminal policy since 1996.     

Credit card fraud under Chinese criminal law

Credit card fraud is a new type of fraud amended into the Criminal Law of China in 1997. The “credit card” under credit card fraud is interpreted as a very board concept, which includes debit card and virtually all electronic payment cards used in ordinary payment, credit loan, transfer and settlement of account, cash deposit and withdrawal. Therefore, it is necessary for the legislature to revise “credit card” under this special fraud into “electronic payment card,” and “credit card fraud” into “electronic payment card fraud,” which will be understood easily and precisely. “Use” and “fraudulent use” of credit card under this fraud is defined as ordinary use of credit card, including withdrawal cash with authentic or forged credit card from ATMs. It is unreasonable to define “malicious overdraft” as a form of credit card fraud under the Chinese Criminal Law. In the future amendment, this kind of criminal conduct shall be separated as independent named as “malicious overdraft” or “abuse of credit card” under the Criminal Law with less stiff statutory punishment than that of credit card fraud. Besides, under the Chinese Criminal Law, stealing credit card and using it is held as “theft,” which is neither reasonable nor logical. Therefore, it should be revised in the future criminal law.     

我国刑事赔偿制度之改革

In reference to the United Nations International Covenant on Civil and Political Rights (hereinafter referred to “the Covenants”), the state compensation system of China in criminal justice shall be reformed as such: Compensation for a miscarriage of justice should not be determined by the results of first instance or second instance, but no guilty through retrial in the final trial upon finding of new evidences. If policemen, prosecutors and judiciaries take lawful measures, causing loss to the suspected due to arrest, detention or other enforcement in the criminal proceedings, the suspected should not get the state compensation for that even if he is decided no guilty in the final trial. If the suspected is cooped up illegally, he should get the state compensation even if being decided guilty finally. The measures of search and seizure should be included in coercive measures, hence differentiating the lawful search and seizure and the unlawful infringement of the property rights. Yang Yuguan, Professor of the Procedure Law Institute in China University of Political Science and Law, whose research mainly covers procedure law and human rights law. He wrote many books and essays, for instance, “Computer and Crime” (1986), “On Plea Bargaining” (1986), “Basic Education in Prisons in China” (1995), “The United Nations Crime Prevention and Criminal Justice Policy” (1996), “On the Ratification and Implementation of the International Covenant on Civil and Political Rights” (2000), “On Hearsay” (2001), “On Exclusionary Rule” (2002), “Human Rights Law: Study On International Covenant on Civil and Political Right” (2003), “The International Criminal Court: Idea, reality and Prospective” (2007), “Death Penalty Control with Procedural Law” (2006), “On Due Process of Law and Human Rights Protection” (2005). He was once a researcher fellow of Ministry of Justice of China, a member of the Crime Prevention Branch of the United Nations Office at Vienna, and an editor-in-chief in some books, such as “The United Nations Criminal Justice Norms and Standards”, “The United Nations Human Rights Treaty Bodies and their Comments”, “A Study On UN Convention of Anti-corruption”.     

利用ATM故障恶意取款案的法律性质辨析

Malicious withdrawal from ATM constitutes offence of theft and belongs to “theft from financial institutions”. In case of “extremely huge amount”, according to China’s Criminal Law, the minimum statutory penalty for the accused is life imprisonment, which is undoubtedly too severe. So far as judiciaries are concerned, reflection should be made with respect to the relevant legislative provisions. In handling individual cases, the wisest practice for judiciaries is to refer to the provision of clause 2 of article 63 of the Criminal Law, hence submitting them to the examination and approval by the Supreme Court for mitigation of penalties. Fu liqing, Ph.D graduate of Peking University (major in the science of criminal law), is now a lecturer at Law School of Renmin University of China. He once learned at Law School of Tokyo University of Japan (2004.10∼2006.9). His representative works are Make-up of the Rule of Law, Voice of the Rule of Law, Theory of the Subjective Illegal Elements—Evolving with the center of intention crime. Meanwhile, he has about 40 articles published in academic journals. His recent research is in the field of theoretic re-construction of the constitutive crime elements and the application of interpretation method on criminal law, etc.     

Milosevic on Trial

International Law is argued to have a “civilized” component, but viewing the actions of supposed “civilized” states, it is hard to agree. An example is the case of Slobodan Milosevic, the former head of Yugoslavia, who was put on trial (until his death in The Hague) for acts, which were in fact committed by many, including heads of state who are not subject to similar charges let alone trials. A close examination of the articles on which this purported international law rests reveals serious doubts about the legal basis for the trial, while agreeing that the acts of Milosevic might well have been morally reprehensible.Emeritus Distinguished Professor of International Law     

试论跨国公司的社会责任

As for international direct investment, the transnational corporations are playing a leading role in the fields of international trade, international investment and international intellectual property. In theory and reality, this authors analyze the rationale of the social responsibilities taken by transnational corporations, the main problems in the social responsibilities of transnational corporations and the legislative status, and put forward the functions of the social responsibilities of transnational corporations in promotion of the legal construction of socialist market economy, the reform of the corporate governance and the development of transnational corporations in China. Wang Chuanli, Professor and Doctoral Supervisor of China University of Political Science and Law, Vice-chairman of China Society of International Economic Law, and Vice-chairman of Research Institute of WTO Law (China Law Society), also Arbitrator of China International Economic & Trade Arbitration Commission and Beijing Arbitration Commission. Her main publications are “The Legal Effectiveness of Foreign Economic Contracts”, “International Trade Law of Sales of Goods”, “International Protection of Intellectual Property Rights” and “International Trade Law Government Control on Business”. Moreover, she has published over ten influential discourses on international economic law. In addition, her ongoing research projects include WTO Agriculture Agreement and the Rules of International Agri-products Trade, WTO and International Core labor Standards, and the Role of Judicial Independence of European Court of Justice to Promote the Integration of Europe.     

试论"超越法律"的企业社会责任

The corporate social responsibility “beyond law” is the responsibility of enterprises beyond the mandatory obligations by force of law but in line with social values and expectations. Indeed, the legal norms on such kind of responsibility are “soft law”, which mainly incorporate social values and expectations in corporate business behaviors and governance structure, so as to realize corporate “self-regulation”. By protecting the substantive and procedural rights of stakeholders and improving their negotiation power, the “soft law” aims at realizing the spontaneous confrontation and balance of the market, and the corporate reputation mechanism and the functions of NGOs adds much to the performance of corporate social responsibility. He Zhaodan, Economics Doctor of Sun Yat-Sen University, mostly focuses on Law and Economics. She has published six research articles in the academic journals of China.     

Research on the judicial review and variation of sentence for the death penalty with a suspension of execution in Chinese criminal law

The imposition of a death penalty with a suspension of execution (DPSE) for two years, and the procedure for judicial review of the DPSE both demonstrate the Chinese policies of “reduction in use of the death penalty,” “cautious application of the death penalty,” and “tempering justice with mercy.” In recent years, the number of cases in which the defendant was sentenced to death and immediately executed has declined, whereas the number of cases in which a DPSE sentence was given has increased. In China, judicial theory and practice generally emphasize the importance of the judicial review procedure in cases where the sentence is a death penalty with immediate execution. However, less attention has been paid to the procedures for review and variation of sentence in DPSE cases. Judicial review for DPSE sometimes exists in name only, and is sometimes overlooked altogether, which is inappropriate for a penalty of this severity. There are also serious shortcomings in the laws regulating the review procedure for the DPSE, which lack provisions specifying the consequences for serious violations of due process during trial, nor do they completely reflect the principle of in dubio pro reo. In the procedure for variation of the DPSE sentence, the relevant laws do not adequately uphold the defendant’s right to a defense or participation in the process. There are also difficulties regarding the time limits on ruling on a commutation of sentence. In order to make the procedure more reliable and guarantee the substantive rights of defendants sentenced to the DPSE, the relevant laws require a number of modifications and improvements.     

Organized economic crime and corruption in Urkraine: The problem of countermeasures

The collapse of communism in Ukraine created opportunities for organized criminal groups to expand their economic criminal activities in the “shadow economy” by penetrating all levels of public and economic administration. Ukrainian law enforcement agencies are poorly equipped to handle this increase in criminal activity, especially with respect to uncooperative foreign and domestic economic institutions. State machinery for regulation and control of industry and commerce was easily accessible to organized crime through bribing of state officials, who received no supervision during economic restructuring. Notwithstanding the active assistance of corrupt government officials, organized economic crime has benefited from chaos and lost government control as the result of recent economic reforms in Ukraine. Researchers in this study hypothesize that the social and economic disorder, as well as a common and justified mistrust of state officials, fosters a pessimism and erodes moral standards, which in turn fosters criminal activity. Of late, judicial sentencing for those convicted of economic crimes has become lighter while many economic criminal cases are never investigated or prosecuted in the first place. In order to combat large-scale corruption, there must be better supervision of government officials and better monitoring of foreign economic transactions. One of the most disastrous consequences of the collapse of the Ukrainian communist system has been the widespread increase of economic crime. This phenomenon is self-sustaining, penetrating all levels of Ukraine's economy and administrative sectors. Criminal activity helps to sustain the shadow economy in Ukraine, which has been estimated by various sources to constitute 50 to 60 percent of the economy. Law enforcement and administrative efforts have been largely futile in curbing this corruption. Nevertheless, it is possible to overcome the criminal social and economic order that has become ingrained in this “shadow economy.” This paper seeks to propose policy solutions for Ukrainian economic crime and corruption that could be implemented at the national level.     

Transcending the dilemma of “public interest”

This paper discusses the evolution and recent trends in the development of the constitutional concept of “public use” in the case-law history of the United States starting from the source of US government’s taking powers and the original meaning of the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of “public use” and “public interest” are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion. In the United States, the safeguard of “public interest” in taking mainly lies legislative rather than judicial control. In a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a “public interest machine”, which automatically generates laws and decisions on behalf of public interests through the democratic representative process. The paper eventually suggests that China should divert its attention from the theoretical definition of “public interest” to institutional construction, and should make the National and Local People’s Congresses and their standing committees to play major roles in deciding taking and compensation schemes. __________ Translated from Zhongguo Faxue 中国法学 (China Law), 2005, (5): 36–45     

The de-medicalisation of assisted dying: is a less medicalised model the way forward?

Although assisted dying has been most commonly presented within a medicalised framework, the notion of de-medicalisation is employed in this paper to suggest that there are emerging models of assisted dying in which some medical aspects assumed to be an integral part of the phenomenon are both challenged and diminished. The paper considers cases where relatives have facilitated a loved one's assisted suicide abroad, cases of assisted death in which the assistor in the actual suicide act is a non-medic, and the growing debate surrounding non-medical grounds for desiring death. In evaluating the potential impact of partial de-medicalisation on the assisted dying debate, the argument presented is that whilst a de-medicalised model could well contribute to a richer understanding of assisted dying and a better death for the person who is assisted, there are cogent reasons to retain some aspects of the medicalised model and that a completely de-medicalised model of assisted dying is unrealistic.     

The European market of 1993: Test for a regional model of supranational criminal justice or of interregional cooperation in criminal law

This is a revised version of a paper presented at an international workshop on Principles and Procedures for a New Transnational Criminal Law. organized jointly by the Society for the Reform of Criminal Law and the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, May 21–25, 1991.     

博客侵权问题研究

In recent years the cases of blog infringement are on the increase, attracting more attention from all walks of life. The author provides a preliminary discussion on the status, elements, and judicial finding of blog infringement, as well as civil liabilities for blog infringement, in the hope of contributing to the research and legislative regulation of blog infringement. Fang Yiquan is a professor and postgraduate supervisor of Law School of Wenzhou University, and a legal adviser of Wenzhou Municipal Government, whose main researches focus on civil law, commercial law and educational law. Professor Fang has been chosen as one of the “151 Talents of the New Century” of Zhejiang Province, one of the “Ten Outstanding Youths” in Wenzhou city, a “Prominent Educator” in Zhejiang Province. His scientific research achievements have received prefectural, provincial and ministerial rewards for over ten times. He has presided ten projects funded by the Humanities & Social Sciences of the Education Ministry of China and the Philosophy and Social Sciences of Zhejiang Province. He has released over 60 articles in academic law journals, such as Politics and Law Forum, Jurists Review, etc. His monographs include Compensation Liability of Student Injury Incidents, Research on Legal Problems of Campus Infringement, etc.     

Money laundering: An investigatory perspective

This is a revised version of a paper presented at an international workshop on Principles and Procedures for a New Transnational Criminal Law, organized jointly by the Society for the Reform of Criminal Law and the Max-Planck-Institute for Foreign and Comparative Criminal Law, May 21–25, 1991, Freiburg, Germany.     

中国法学引证研究之省思

The methodological basis of legal cytology is empirical positivism, i.e., the social empirical investigation method is employed to make a quantitative analysis on legal research papers. Cytology has limitation in methodology, behind which a complicated “knowledge-power” structure exists. Considering the matter in China’s present legal citation researches, the real quality of legal papers shall not be evaluated by the citation rate simply, but establishing a localized academic evaluation system to scale it comprehensively. Liu Lei, Ph.D of law, works at Suzhou University. His publications include Executing the deferment of prosecution with discretion (Chinese Journal of Law, 28(4), 2006), Spontaneous order: A puzzled analysis on Hayek’s liberty theory (Law & Social Development, 12(2), 2006), Reflections on the rule of mere-indictment-information in pretrial procedure (Global Law Review, 29(2), 2007), Recognition of local acknowledge from Chinese jurisprudence (Law & Social Development, 13(4), 2007), On the structure of the criminal trial in criminal appeal (Chinese Criminal Science, (4), 2007), An examination of criminal detention power from the perspective of the principle of separation of powers (Global Law Review, 30(3), 2008).     

犯罪人的本质属性辨析

The difference between criminals and non-criminals has always been a topic for criminal psychologists. It is easy to describe the features of offences by their social and legal attributes, while it is still difficult to find any significant difference of the features from ontological perspective of criminals. To get to know criminals from the point of personality, we may discover the essential features of criminals. However, while acknowledging the role of personality, the variables such as situations, moods and social relationships can not be neglected. Meanwhile, it is also necessary to study the personality mechanism of criminals. Zhang Shaogang, an associate professor in Communication University of China, also acts as compere in the program of the “Jinri Shuofa” (legal report) and “Dajia Kanfa” (all get close to the law). Since 2006, he became a Ph.D candidate at China University of Political Science and Law, majoring in the direction of criminal psychology. His publications include “TV Planning Outline”, “On the New Planning of TV”, “Television Programs and Program Planning”. The large-scale live broadcasts called “20 Hours of Life” referring to three cross-strait districts, presided by him, achieved the first prize of China News Awards in the category of live televisions.     

How important are interview methods and questionnaire designs in research on self-reported juvenile delinquency? An experimental comparison of Internet vs paper-and-pencil questionnaires and different definitions of the reference period

There has been relatively little change over recent decades in the methods used in research on self-reported delinquency. Face-to-face interviews and self-administered interviews in the classroom are still the predominant alternatives envisaged. New methods have been brought into the picture by recent computer technology, the Internet, and an increasing availability of computer equipment and Internet access in schools. In the autumn of 2004, a controlled experiment was conducted with 1,203 students in Lausanne (Switzerland), where “paper-and-pencil” questionnaires were compared with computer-assisted interviews through the Internet. The experiment included a test of two different definitions of the (same) reference period. After the introductory question (“Did you ever...”), students were asked how many times they had done it (or experienced it), if ever, “over the last 12 months” or “since the October 2003 vacation”. Few significant differences were found between the results obtained by the two methods and for the two definitions of the reference period, in the answers concerning victimisation, self-reported delinquency, drug use, failure to respond (missing data). Students were found to be more motivated to respond through the Internet, take less time for filling out the questionnaire, and were apparently more confident of privacy, while the school principals were less reluctant to allow classes to be interviewed through the Internet. The Internet method also involves considerable cost reductions, which is a critical advantage if self-reported delinquency surveys are to become a routinely applied method of evaluation, particularly so in countries with limited resources. On balance, the Internet may be instrumental in making research on self-reported delinquency far more feasible in situations where limited resources so far have prevented its implementation.

交通肇事罪若干问题研究——兼析有关交通肇事司法解释

随着我国经济持续、快速地发展 ,人民生活水平不断提高 ,个人拥有机动车辆的比例迅速攀升 ,随之而来的形形色色的交通事故、交通肇事行为也层出不穷 ,原有的 1997年刑法所规定的交通肇事罪的相关内容已无法满足司法实践的客观需要。为此 ,最高人民法院审判委员会出台了《关于审理交通肇事刑事案件具体应用法律若干问题的解释》 ,本文将就该解释出台后所引发的一些问题进行研究和探讨。