刑事和解:误读与澄清——以与恢复性司法比较为视角

在西方,刑事和解是恢复性司法的起源与模式之一。在我国,刑事和解起源于轻伤害案件处理方式的改革,是民事赔偿责任的和解,更强调当事人双方矛盾的化解,而非社会关系的全面恢复,属于原发性的而非继发性的、整体性的而非平行性的司法举措。     

Social Justice and Moral Reasoning: An Empirical Integration of Two Paradigms in Psychological Research

Distributive and procedural justice are of central importance to past and current theories of the psychology of moral development and the social psychology of justice. In order to explicate the relationships among theories, participants responded to both a measure of moral reasoning and a measure of 15 various justice criteria. Analyses showed that each schema of moral reasoning was significantly predicted by different concerns about social justice. Furthermore, individuals' judgments about justice were best represented by four factors, offering a broader definition of justice in relation to moral schemas. The findings were consistent with Kohlbergian theory; moral reasoning appears to proceed from concerns about self-interest to distributive fairness to procedural justice.     

Truth, Reconciliation and Justice: The South African Experience in Perspective

The lecture examines the role and objectives of truth and reconciliation commissions in societies undergoing major political transitions, with particular reference to the model of South Africa, and compares this method to others suggested by international criminal law for accommodating both retributive and restorative responses to past conflicts and crimes against humanity.     

The Limits of Reconciliation: The Story of a Perpetrator,Katherine Ann Power

In this paper, I apply concepts of restorative justice, along with moral philosopher Joanna North's (1998) multistage model of the process of earning forgiveness to the case of 1960s antiwar militant, Katherine Power. Both frameworks assume that forgiveness ought to culminate in reconciliation between perpetrator and victim. On September 23, 1970, Katherine Ann Power, a 20-year-old college student, was a member of a group of five who were robbing a bank near Boston to support the movement against the Vietnam War. One from the group stayed at the bank and shot and killed a Boston police officer and father of nine. Under Massachusetts' felony murder law, all five were chargeable with murder. Power went underground for 23 years, remaining on the FBI's Ten-Most-Wanted list longer than any other woman in history. During her fugitive years, Power lived her life in a purposeful attempt to make atonement. Ultimately, though, she came to understand that her crime was not a private matter, but demanded social and relational modes of remediation, including public confession, public penance (in a penitentiary), and efforts at reconciliation with the family of her victim. So in 1993, she turned herself in, pleaded guilty to manslaughter, and began serving an 8–12-year sentence in Massachusetts. She completed her prison sentence in October, 1999. Power spent her years in prison engaging in reflection and action that maps well onto the first five stages of North's model and onto much of the restorative justice model. So far, though, Power's efforts have failed to yield the hypothesized reconciliation with her victims. Examination of the parallels and divergences between these theoretical frameworks and Power's narrative provides significant insight into the meaning, the promise, and the limits of reconciliation.     

Book Review: Considering Social Justice: A Review of David Miller's Principles of Social Justice

Miller's volume is a useful, thorough, and innovating overview of the subject of social justice. It inspires three lines of critical response. The first involves the symbiotic role of philosophy and empirical inquiry in the analysis of justice. The second involves the qualities of opportunity that ought to underlie justice. Finally, there are a few lessons regarding the status of justice in the overall evaluation of society that can be learned from the case of the United States, which has an anomalously bad record with respect to distributive justice. The centrality of politics is one of the implications of the analysis.     

构建刑事和解制度探讨

刑事和解应适用于刑事诉讼的各个阶段,原则上由人民调解委员会主持,检察机关参与到和解的各个过程,且应与社区矫正相对接,从而实现犯罪人和被害人的共同正义。     

中国藏区刑事和解问题研究——以青海藏区为中心的调查分析

在中国藏区,刑事和解有着悠久的历史传统,是该地区重要的刑事冲突解决机制。近年来,在和谐社会语境下,中国藏区的刑事和解有所复兴,主要表现为诉讼外和解与诉讼内和解两种形式,其基本依据是盛行于当地的和解赔偿习惯法;实践中,和解的主持者主要是在当地具有威望的长老、宗教人士、村长、部落头人的后裔、司法人员等。就整体而言,中国藏区的刑事和解与国家刑事司法之间是冲突的,而且造成这种冲突的原因较为复杂。为了解决这一冲突,实现中国藏区刑事法治的良性发展,应以维护刑法规范的有效性和彻底解决刑事冲突为功能向度,建立包括刑事案件发现制度、诉讼外和解确认制度和诉讼内和解制度为基本内容的刑事和解制度。     

Writing the Rwandan Genocide: The Justice and Politics of Witnessing after the Event

This paper tries to read together three texts that refer to the Rwandan genocide and to draw attention to certain paradoxes that emerge from the way in which the texts might be said to talk to and past each other. The overall intention is to throw light on the complications in witnessing such an event, and to themes of justice and politics that arise.

当代正义要求的法则化——兼论社会保障法的正义基础

19世纪以来,西方的正义观发生了重大变化,即从功利主义的正义观向社会正义理论转变,从谋求最大多数人的最大利益向关爱社会境况最差者转变。本文考察了罗尔斯的社会正义理论,并从法律视角分析了以罗尔斯为代表的社会正义理论所导致的法律变革,揭示了社会保障法的正义基础。     

A Vigilante Model of Justice: Revenge,Reconciliation, Forgiveness,and Avoidance

Once a working relationship is damaged through an act of injustice, how do the victim and offender repair their relationship? What causes the victim to let go of the anger and resentment and then reconcile with the offender? We propose a theory that the likelihood of forgiveness and reconciliation is greatly enhanced, and revenge and avoidance greatly decreased, if justice is first served. That is, forgiveness follows justice; without justice, forgiveness is much less likely. Justice may be served one of three ways: (1) by the victim evening the score; (2) by the organization punishing the offender; or (3) by the offender repenting. We recommend that managers establish a procedurally just climate so that victims of offense seek distributive justice through formal channels rather than seeking it themselves through revenge.     

恢复性司法“中国化”之制度抗衡问题研究

就被害人、犯罪人利益保护而言,无论是附带民事诉讼制度、还是刑事被害人补偿制度抑或是刑事和解制度、非刑罚处罚方法,它们都远不如恢复性司法那么周详;就提高诉讼效率而言,刑事简易程序功不可没,但已无拓展的空间,亟须恢复性司法的加盟。     

Social Justice in Love Relationships: Recent Developments

In all societies, people are concerned with justice. “What’s fair is fair!” “She deserves better.” “It’s just not right.” “He can’t get away with that!” “It’s illegal.” “It’s unethical!” “It’s immoral” are fairly common laments. In the 11th century, St. Anselm of Canterbury (Anselem of Canterbury: The major works, 1998) argued that the will possesses two competing inclinations: an affection for what is to a person’s own advantage and an affection for justice; the first inclination is stronger, but the second matters, too. Equity theory, too, posits that in personal relationships, two concerns stand out: firstly, how rewarding are people’s societal, family, and work relationships? Secondly, how fair and equitable are those relationships? According to equity theory, people feel most comfortable when they are getting exactly what they deserve from their relationships—no more and certainly no less. In this article, we will begin by describing the classic equity paradigm and the supporting research. We will then recount the great debate that arose in the wake of the assertion that even in close, loving, intimate relationships, fairness matters. We will end by describing what scientists have learned in the past 35 years about the competing claims of altruism, reward, and fairness in love relationships.     

论民事抗诉对实现司法公正的价值

司法公正是社会主义法治内涵的核心价值,它直接关系到公民的人身、财产安全和社会的稳定与安宁.民事抗诉制度对于实现司法公正具有重要的价值,具体表现在:它能有效地监控法官的自由裁量权,有效地节省司法资源,克服司法地方化.正因如此,在我国目前条件下,民事抗诉制度只能不断完善与加强,决不能削弱,更不能废除.     

Equity and Social Justice in Water Doctrines

The role of institutions in the management of natural resources, such as surface water, have long been seen as promoting an efficient and socially just distribution of the available resource. Perceptions of basic liberties and procedural and distributive justice are often at the core of many water disputes throughout the world. During the past 15 years there has been a number of extensive studies exploring community perceptions of fairness and justice in water management and the development of fairness principles (see e.g., Nancarrow, B. E., and Syme, G. J. (2001). Soc. Justice Res. 14(4): 441–452; Syme, G. J., and Nancarrow, B. E. (1992). Perceptions of Fairness and Social Justice in the Allocation of Water Resources in Australia. CSIRO, Division of Water Resources, Perth, Australia (Consultancy Report No. 92/38); Syme, G. J., and Nancarrow, B. E. (1997). Water Resour. Res. 32: 1843–1850; Syme, G. J., Nancarrow, B. E., and McCreddin, J. A. (1999). J. Environ. Manage. 57: 51–70; Syme, G. J., Nancarrow, B. E., and McCreddin, J. A. (2000). Risk Anal. 20(6): 905–916). This paper contributes to that body of knowledge by evaluating three water doctrines underpinning water management using a variety of social justice criteria, drawing examples from the United States and Australia as appropriate. The notion is that if the water doctrine of a state or country conforms to a set of social justice principles then the water policies derived from it should produce just outcomes.     

Moral Reasoning and the Use of Procedural Justice Rules in Hypothetical and Real-Life Dilemmas

The use of Leventhal's procedural justice rules in moral judgments was examined (1) in the match examples of the Colby and Kohlberg moral judgment interview manual (Study 1), (2) in hypothetical dilemmas given to a sample of 41 participants in professional ethics classes, and (3) in the real-life moral dilemmas produced by this sample (Study 2). Consistent support was found for the hypothesis that bias suppression is used more frequently at the higher moral reasoning stages. A higher number of justice rules were employed in solving a real-life than hypothetical moral problem, and most procedural justice rules were used more frequently in the real-life dilemma.     

Regret,Reconciliation, and Restorative Justice: Introduction to a Special Issue of Social Justice Research

Social Justice Research -     

国有企业改革与社会公正问题研究

市场经济从本质上说是一种公正经济,国有企业改革作为我国经济改革的核心内容,在追求经济效率的同时,必须重视实现和推进社会公正。不可否认,在国企改革过程中产生的社会不公现象,影响了改革的进程,甚至威胁到社会的长治久安。应当尽快建立和完善社会保障体系,在国企改革和社会公正之间找到最佳的平衡点,促进国企改革在维护社会公正的前提下展开。     

亲情正义与规则正义的冲突与调和——基于亲情案件引发舆论争议的思考

亲情正义与规则正义的立论基础不同,导致涉亲情案件中依法律规则的裁判结果与社会的情感评价可能冲突。亲情正义强调亲情伦理,思考问题充满感性和区别对待,更注重亲情带来的义务要求。而规则正义强调法律至上、理性思考、权利与义务的统一,注重平等对待。为弥合二者冲突,借鉴不同地方的法治经验实属必要。立法和司法也应更积极回应亲情正义的要求,清晰界定涉亲情案件中对事、对人的适用范围,尊重当事人的选择,如此方能实现法律与情理的合理互动。     

An Integrative Perspective on Social Justice: Distributive and Procedural Fairness Evaluations of Positive and Negative Outcome Allocations

This paper presents a theoretical framework for the integration of distributive and procedural justice in positive and negative outcome allocations. The framework consists of seven basic assumptions, seven propositions, and seven groups of interrelated hypotheses. The expected outcome offers a coherent program for future justice research based on the realization that distributive and procedural aspects of fairness cannot be meaningfully treated (1) in isolation from one another, and (2) without taking into account the valence of the allocated outcome. The framework should also reveal the need to reassess existing distributive and procedural justice study conclusions that neglected to examine the interactive effects of the allocation outcome (distribution) and the procedure and the outcome valence.