National Security and the Press: The Government's Ability to Prosecute Journalists for the Possession or Publication of National Security Information

In 2006, then Attorney General Alberto R. Gonzales raised the possibility that journalists could be prosecuted for publishing national security information. In addition, the federal government's prosecution of two former lobbyists for the American Israel Public Affairs Committee (AIPAC) for possessing and disseminating national security information has been called an attempt by the government to prosecute individuals who behave like journalists. This article identifies existing laws under which the press could be criminally prosecuted for the possession and/or publication of national security information and describes how the courts have addressed those laws. The article concludes that while there is support for Constitutional protection for journalists in these cases, the Supreme Court of the United States is unlikely to interpret the First Amendment as protecting journalists from prosecution for possessing and/or publishing national security information. Therefore, the article contends that Congress should amend the statutes outlined herein to limit prosecution to instances when there is evidence of intent to harm the United States.     

Trusted notifiers and the privatization of online enforcement

Online content is increasingly enforced by private parties based on private regulation. One recent trend in the takedown of unlawful online content is the emergence of models, where trusted third parties – private or public – are given privileged notification channels for flagging infringing content.Despite increasing practical importance, these arrangements have received little scholarly attention. This article explores the functioning of trusted notifier-models and how they are addressed by the European lawmaker in the context of two intermediaries, online platforms and domain name registries. Depending on intermediary, trusted notifier-models can both be seen as extension of the existing notice-and-takedown regimes and an additional voluntary expedited-enforcement layer. The author argues that these trusted notifier-models are problematic given the broad room of autonomy that the legislator is leaving to private parties. Whereas models involving public authorities are subject to general administrative law principles as well as constitutional and human rights safeguards, the framework for private regulation (i.e. without intervention of public actors) is less clear. In the field of domain names, these legitimacy issues give raise to special concern given the detached relation between domain names and website content. The paper criticizes the lack of insights into existing arrangements and calls for increased transparency. The author concludes that a legislative minimum framework is desirable.     

Rethinking Criminal Libel: An Empirical Study

The prevailing view of criminal libel among communication law scholars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defamation can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, suggest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically motivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues.     

庭前会议：从法理到实证的考察

为了促进集中审理的实现,2012年刑事诉讼法增设了庭前会议程序。从规范分析的视角可见,该程序主要处理与审判相关的程序性争议,具有证据开示、非法证据排除、争点整理、沟通说服、程序分流和调解和解等六项功能。庭前会议既为集中审理做准备,又间接过滤不当起诉,以保障人权。通过样本分析可见,某些地方的司法机关将庭前会议中的证据异议等同于法庭质证,赋予庭前会议以裁决效力,这反映出司法实务部门过度追求效率的倾向。庭前会议制度的生长,应当在程序法定原则之下,既尊重庭审的中心地位,保持庭前会议与庭审的平衡,又充分释放其功能和影响,实现效率的最大化。     

‘Female Husbands’, Community and Courts in the Eighteenth Century

While there was no specific law prohibiting sex between women in the eighteenth century, some women were prosecuted as a consequence of same-sex relationships. These ‘female husbands’, women who married other women under male identities, often lived highly individual lifestyles; but their path through prosecution and punishment involved a much more intricate web of relations. Thus an exploration of their cases highlights important features of the contemporary criminal justice system as well as popular and elite attitudes to the specific offences. In particular, understandings of the role of the community in the discovery, prosecution, and punishment of criminal offences are complicated by an examination of the female husband cases. In a crucial period of change for the legal system, the complexities of its processes as well as the impact of class, gender, and culture are exposed. Light is shed upon the shifting roles and interests of the individual, the local community, and the courts at a point when criminal cases were in the early stages of a shift from private prosecution and public punishment to greater formality and state control. These unusual cases bring into focus the complex role of community relationships in an evolving legal system.     

Competition law enforcement under informational asymmetry

China-EU Law Journal - Competition law enforcement, whether by public officials, private parties and consumers or the courts, has to resolve informational and resource asymmetries. Current EU...     

刑事自诉制度研究

我国在刑事起诉制度上实行以公诉为主、自诉为辅的原则。1996年修正后的刑事诉讼法大幅度扩张了刑事自诉案件的范围,致使我国自诉制度在刑事起诉制度中的地位和作用明显得以提升。在这一背景下,我国刑事自诉制度中应解决的问题也越来越多并日渐凸现了出来,亟需研究、完善。     

论刑事鉴定启动权制度

刑事鉴定启动权制度不仅反映了一个国家司法鉴定制度的基本特征，也体现了一国诉讼制度设计的模式，更影响一国权利保障体系的配置结构。我国刑事诉讼法的再修改应当对公诉案件与自诉案件架构不同的鉴定启动机制。公诉案件在保留现存鉴定启动权制度下赋予当事人鉴定的申请权，增加当事人对鉴定机构和鉴定人的选择权，并对职能部门的启动鉴定权进行限制性制约，在完善鉴定结论“告知”制度的同时，建立“立证、留鉴、备鉴”制度；自诉案件实行当事人启动权制度：建立与诉讼制度、证据制度相协调的鉴定启动权制度。     

论知识产权刑事自诉案件中举证责任的分配原则

我国最新的司法解释进一步明确了知识产权刑事案件公诉和自诉的规定,旨在切实保障知识产权被害人的刑事自诉权.然而,司法实践中知识产权刑事自诉案件极其罕见.认为在适用现行程序法规定和证据规则的条件下,知识产权遭受侵犯的被害人根本无法提供足够的证据来证明被告人的犯罪行为.因此,中国在今后制定或修改法律时,应当确立新的举证责任分配原则,从根本上减轻知识产权犯罪案件刑事自诉人的举证负担.     

我国刑事起诉程序的不足与完善

我国刑事立法中自诉案件存在的不足主要表现为自诉案件范围过于宽泛,自诉与公诉转换条件模糊,因而自诉程序的价值难以发挥。应当限制自诉案件的范围,对由公安机关立案侦查的自诉案件,被害人有是否提起公诉的决定权。     

公益行政诉讼模式的理论分析与制度化建议

公益行政诉讼模式可分为公诉模式与私诉模式.公诉模式包括检察机关作为起诉人的典型公诉模式和特定公益性社会组织作为起诉人的未来公诉模式.检察机关的典型公诉模式为现阶段实际可行形态.在检察行政公益诉讼中,检察机关处于“行政公诉人”地位,依法行使有关监督和诉讼职权.私诉模式包括公民提起的典型私诉模式和经依法登记的社会组织提起的...     

核准追诉低龄未成年人刑事责任的程序定位及其重要展开

从程序上看,核准追诉低龄未成年人刑事责任的行为属于侦查程序的行为,而不是立案程序或审查起诉程序的行为。因而报请核准追诉的时间应当分为两种情况:一是在需要逮捕被追诉人的案件中,侦查机关应当在提请批准逮捕的同时报请核准追诉;二是在无需逮捕被追诉人的案件中,侦查机关在确定查明的事实与收集的证据符合核准追诉条件时,就应当立即报请核准追诉。根据这种程序定位,在核准追诉的证据方面,应当根据我国《刑法》第17条第3款规定的实体法事实确定证明对象,根据审查批捕标准确定核准追诉的证明标准;在核准追诉的当事人参与权与救济权方面,应当听取未成年犯罪嫌疑人及其辩护律师的意见,还应当听取被害人及其近亲属的意见,被害人及其近亲属不服不予核准追诉决定的,不可提起自诉,但可以申请复议一次。     

论互联网时代诽谤罪的公诉范围

我国刑法对诽谤罪采取自诉为主、公诉为补充的双轨制模式。由于刑法但书“严重危害社会秩序和国家利益”的公诉依据具有模糊性,同时司法解释本身缺乏解释力和可操作性,存在同义解释、近义解释等问题,加剧了公诉诽谤罪和其他罪名之间的冲突和竞合,特别是当被害人为地方领导干部时,诽谤罪的公诉权在实务中存在被滥用风险,部分限制公诉权的要件在实务中被淡化甚至忽略。从相对狭义的角度看,“严重危害社会秩序和国家利益”只有在行为人对侵犯个体法益具备主观故意,但对侵犯社会法益或国家法益不具备主观故意(或无法证明其具备故意)的情形下,才有其独特的法律适用价值并不与刑法其他罪名相冲突。为妥善处理和平衡诽谤犯罪中惩治犯罪和保障人权的关系,适应互联网时代的内外部变化,建议通过修改我国刑法,将诽谤罪区分为情节不严重、情节严重、情节特别严重的三种形态,为充分保障宪法权利,情节不严重的不作为犯罪处罚;为充分保障自诉权,情节严重的为绝对告诉乃论;为依法惩治犯罪,对符合特定形式要件和实质要件,情节特别严重的诽谤犯罪可以依法公诉,以维护网络信息秩序。     

法庭科学的表述与法律证明

法庭科学评价意见在法庭上陈述的方式应当与法官所要求、陪审团实际应用的刑事证明程序相兼容。这并非一个数值性的归纳过程,而是在探求排除合理怀疑证明标准下的“最佳解释推理”。面临的问题并不是控方主张的数学概率问题,而是在全面考量了法庭上出示的所有证据后,控方主张是否为唯一可解释假说的问题。为确保陪审团仍然能专注地运用这一法律证明标准,笔者主张,控方提出的评价性法庭科学证据不应当以似然比的形式在强调若控方主张为真便更有可能认定证据,而应聚焦于本方证据对辩方有利的解释范围并在被告被定罪之前排除掉所有这些解释的合理可能性。     

The Agencies of Abuse: Intimate Abusers' Experience of Presumptive Arrest and Prosecution

Presumptive arrest and prosecution policies are designed to eradicate domestic violence by disrupting abusive relationships and transforming the subjectivities of victimized women and abusive men. Using in-depth interviews with 30 persons arrested and prosecuted for domestic violence, this article examines the power of presumptive policies by exploring how intimate abusers experience them. The study finds that while the police and courts are able to secure arrests and convictions on domestic violence cases, nearly all the respondents in this study understand their punishments as unfair sanctions meted out by an unjust local legal system rather than as the consequences of their own actions. These injustice claims emerge from abusers' group identities as well as the very practices through which the police and courts gain authority over them. These findings demonstrate that the power of the law as a force for social change may be more limited than some have claimed. In addition, they reinforce calls to reform society's response to intimate violence through procedures that can go further in empowering victims and having offenders recognize their responsibility for violence.     

An overview of the judicial protection of patents in China

Legal context: The present paper introduces how the patent protection systemis organized in China and the competence of various administrativeand judicial instances is reviewed with case studies as illustrativeexamples. Key points: The article describes the patent grant (or refusal) procedureand the means available to an applicant to have a decision reviewed,as well as the prosecution of invalidity actions. Practical significance: Finally, the authors examine responses to patent counterfeitingthrough administrative proceedings along with their practicalimplications. This might possibly involve agreement betweenthe parties, and judicial actions, including both civil andcriminal proceedings.     

How damages recovery actions can improve the fight against corruption: the crisis of criminal law policies and the role of private enforcement in an Italian case of judicial corruption

In many countries corruption is rife, despite the fact that there is a criminal-law legislative framework for corruption. Italy is one of these countries. The commitment of judges and prosecutors to combating instances of corruption is often frustrated by the consequences of the excessive length of the proceedings. The fight against corruption has been carried out mainly in the field of criminal law. The criminalisation of corruption both in domestic and in international contexts is not enough to reduce corrupt practices. In the last decade another front in the fight against corruption has been explored: the private law approach as a complement to criminal law policies. Indeed, the same corrupt practise may be subject both to criminal proceedings by public authority and to civil proceedings by the victims of corruption. The argument that private law instruments may be used in order to achieve a public policy goal is not new and goes beyond the definition of "private enforcement" in the context of competition law. The idea of creating a favourable social and legal background to encourage the victims of anti-competitive practices can also be transposed to the fight against corruption. In fact, in many cases of corruption the low percentage of successful criminal persecution and the class of punishment associated with corruption offences do not represent a deterrent, considering the benefits deriving from bribe. This paper aims to address the question as to whether private law remedies under national legal systems could constitute an effective disincentive against corrupt practices, alongside criminal prosecutions. The case CIR vs. Fininvest, Lodo Mondadori is one of the first cases involving damages actions resulting from corrupt practices, and addresses two of the main obstacles to civil actions in this field: evidence and the quantification of damages.     

Private Interests Seeking Punishment: Prosecution Brought by Private Individuals and Groups in Spain

This article centers on the study of the Spanish private prosecution system. It is an attempt to highlight both its theoretical potential and its practical dysfunctions. This type of lay participation in criminal matters is often seen as a way to strengthen democracy or to legitimate justice, opinions that the author rejects. Although private prosecution may work as a safety valve against the public prosecutor's inactivity, the introduction of private interests in the penal process may distort its true significance and function. Private prosecution can become a Trojan horse within the system.     

概率性证据研究中的认识悖论

在南昌大学原校长周文斌受贿案中，其机械使用概率论解释质疑控方证据的做法，存在严重错误，由此引发了关于概率证据理论的一些思考。虽然英美证据理论研究中，占统治地位的对证据和证明过程的描述是概率性的，但艾伦教授认为数学世界与人类事务世界之间可能并不相似。在进入大数据时代的今天，司法实践对于精确性和可操作性的需求，由量化带来的对证明责任和当事人主张的清晰表达，以及对证明过程提供的规范性指引，都刺激了大量的试图使用概率性理论解释审判过程的某个方面的论证尝试。然而，在概率性语言试图描述证据及证明活动时，检察官及辩护律师谬论、结合悖论、相关性悖论等认识错误的出现却带来了对事实认定活动与概率理论之间矛盾冲突的反思，或者说并非是对概率性理论的批判，而是对法学理论家们就概率性理论的特定使用的批判。     

Victim cooperation and the prosecution of domestic violence in a specialized court

We address the role of victim cooperation in the prosecution of domestic violence cases in a specialized court in Toronto, Canada. We first examine what factors predict whether a case will proceed to prosecution. We find that, even in a court designed to minimize reliance on victim cooperation through the use of other types of evidence, when prosecutors perceive a victim to be cooperative, the odds that a case will be prosecuted are seven times higher than if a victim is not perceived to be cooperative. In the second part of our analysis, where we seek to determine the correlates of victim cooperation, we find that the two most important determinants of victim cooperation are the availability of videotaped testimony and meetings between victims and victim/witness assistance workers. We discuss the implications of these findings for future research and policy.