解读包公故事中的罪与罚

包公听讼断狱故事 ,突出的也是“罪与罚”的价值取向。正是基于这一原因 ,本稿在讨论包公故事中的法律问题时 ,首先标举“罪与罚”这个题目。除此之外 ,这一安排也有先“实体法”后“程序法”的技术考虑。值得引起我们思考的是 :在现实社会生活中 ,纠纷无论如何不会出现民事纠纷与刑事犯罪之间比例如此“悬殊”的情形。那末 ,何以馀以故事特别强调“罪与罚”这一主题呢 ?这正是本文着重研究的     

Kant's theory of punishment: Deterrence in its threat,retribution in its execution

Kant's theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. Still, it leaves one with certain misgivings regarding the internal consistency of his position. Perhaps the problem lies not in Kant's inconsistency nor in the senility sometimes claimed to be apparent in the Metaphysic of Morals, but rather in a superimposed, modern yet monistic view of punishment. Historical considerations tend to show that Kant was discussing not one, but rather two facets of punishment, each independent but nevertheless mutually restrictive. Punishment as a threat was intended to deter crime. It was a tool in the hands of civil society to counteract human drives toward violating another's rights. In its execution, however, the state was limited in its reaction by a retributive theory of justice demanding respect for the individual as an end and not as a means to some further social goal. This interpretation of Kant's theory of punishment maintains consistency from the earliest through the latest of his writings on moral, legal, and political philosophy. It provides a good reason for rejecting current economic analyses of crime and punishment. Most important of all, it credits Kant's theory in its clear recognition of the ideals intrinsic to libertarian government.     

Crime and justice in Tudor-Stuart England and the modern United States

This paper surveys the criminal justice system in 16th and 17th, century England, for the purpose of pointing out important similarities between its workings and the operation of the criminal justice system in the modern United States. Topics covered include (1) the nature and incidence of crime; (2) citizen participation in and cooperation with the criminal justice system; and (3) the disposition of persons and cases. The authors conclude that, contrary to popular opinion, early modern England was not a halcyon period of law and order. That the English criminal justice system was beset by problems similar to those faced today seems to indicate that the interaction between law and society is inherently problematic.     

布坎南宪政规则理论研究

立宪民主是宪法性规则约束下的一种有限民主,立宪规则理论是布坎南宪政民主理论的核心内容.布坎南相信一套政治和经济活动的宪法性规则可以有效约束政府行为.但是由于布坎南的规则理论太过理想化而招致很多批评,使得布坎南不得不对其规则理论进行不断修正,其规则理论经过了一致同意规则、超多数裁定规则、普遍性原则等几种形式流变.通过对布坎南的规则内容及规则形式流变的研究,有利于我们进一步看清布坎南规则理论的困境和乌托邦色彩,有助于我们深入地把握其立宪民主理论的内容实质.     

Understanding the place of punishment: Disadvantage,politics, and the geography of imprisonment in 21st century America

Studies suggest that the spatial distribution of punishment in the United States is shifting. This article analyzes variation in prison admissions across U.S. counties to deepen our understanding of the contemporary geography of punishment. While research on punishment generally treats economic and political theories of punishment as distinct, we draw on recent studies of penal attitudes to develop a theoretical argument regarding their possible interconnection. We then use Hierarchical Linear Modeling to test the hypothesis that conservatism, race, and disadvantage are associated with the use of prison and that these factors help to explain why prison admission rates are higher in rural and suburban counties than in urban ones, despite notably higher crime rates in the latter. The results indicate that nonurban counties send more people to prison than urban counties and that socioeconomic disadvantage, the size of the Black population, and conservatism are significant predictors of prison admissions after controlling for crime‐related problems. These findings suggest that poverty, race, and politics work in concert to shape the distribution of punishment across 21st century America.     

论罪刑法定原则的社会基础

罪刑法定原则的立法化 ,当然离不了学者们的创构与证成 ,但是关键还在于社会的现实需要。在一定意义上讲 ,罪刑法定原则的立法化与社会的现实结构紧密相关。在中国 ,伴随着一元化社会结构的是源远流长的刑事类推制度 ,而随着市民社会的兴起和二元化社会结构的成长 ,罪刑法定原则终于实现了立法化。     

夫妻一方对他方自杀而“见死不救”之刑事责任新探——从“宋福祥故意杀人案”之判决理由谈起

"罪刑法定原则"与"罪刑相适应原则"已经成为我国刑法的基本原则。"宋福祥故意杀人案"之判决理由欠缺合理性与合法性,夫妻一方对他方自杀而"见死不救"的不应当承担刑事责任。在刑事审判中,法官应"以事实为根据,以法律为准绳",以作出正当的个案裁判为己任,在审判中真正做到符合"罪刑法定原则"与"罪刑相适应原则",才能切实保障公民的合法权益,维护社会的和谐稳定,也才能真正实现依法治国。     

The stability of punishment: A follow-up of Blumstein's hypothesis

Because of the intrinsic relativity of social tolerance toward crime, the rate of punishment that a given society inflicts on its criminals is expected to remain relatively constant over the long term, in spite of social changes and increasing or decreasing crime rates. This paper reconstructs the penal behavior of Montreal's criminal justice from 1845 to 1913 and finds that the stability hypothesis, all things considered, works quite well and has much heuristic value. Three problems, somewhat bypassed in the existing literature, are dealt with here: the reliability of penal statistical time series, the direct empirical evidence of stabilization processes, and a rather crude way of measuring prison punishment. It is suggested, furthermore, that the stability hypothesis include in its future argument the impact of increasing policing and that it be confined tentatively to modern western societies.     

DETERRENCE Theory versus Practice

Abstract Recently, some researchers have attempted to resurrect deterrence theory. These researchers have focused on the relationship between certainty and severity of punishment and subsequent rates of crime. An inverse relationship has been found, leading these researchers to conclude that penal sanctions deter crime. This paper presents another hypothesis, namely, that increases in crime may overburden existing legal machinery, and thus cause decreases in the certainty of punishment as a result. Using the same data employed in past deterrence studies, this paper demonstrates that crime may affect certainty of punishment more strongly than certainty of punishment affects the crime rate, a finding which seriously questions the ability of legal threats as currently administered in American society to deter crime.     

Electrocution and the Tar Heel state: The advent and demise of a southern sanction

During the latter decade of the nineteenth century and early decades of the twentieth century, adoption of the electric chair spread rapidly from the North, down the eastern seaboard, and throughout the Deep South States. The method of execution was hailed as technologically advanced, and proved to be the most prevalent means of execution in the twentieth century. In 1909, North Carolina became the sixth state in the nation to adopt the new method, which would later stand as a cultural icon of southern punishment. In 1935, the state oddly abandoned the method, and shifted to lethal gas, a method that until that time had only been employed in a few western states. While North Carolina’s violent crime rates and yearly executions rivaled those of the Deep South during the 1920s and 1930s, the state’s political and social climate would directly lead to the demise of a cultural artifact that became synonymous with the institution of southern justice.     

Outsiders and justice consciousness

The foundations of my justice consciousness lie in two books that share the name “outsiders.” I was introduced to S.E. Hinton's novel before I was a teenager and it was my first real contact with the “Greasers,” the “Socs,” and a world of juvenile delinquency divided by social class. Written by a 16‐year‐old girl around the time I was born, I think it was this book that initially sparked my fascination with juvenile delinquency and the study of crime. I pursued this interest in college and became concerned with inequality and the ways in which our social surroundings shape our choices and our life chances. Reading Howard S. Becker's classic statement of labeling theory in his version of Outsiders changed my perspective again and I have never looked at the world in quite the same way since.     

《刑法修正案(八)》新增坦白制度的理解与适用

《刑法修正案(八)》第8条规定了坦白从宽情节,这是我国刑事立法上首次确认坦白从宽制度。坦白从宽法定化是落实宽严相济刑事政策,实现司法公正、提高司法效率,走出司法尴尬境地之必然产物。坦白,是指犯罪嫌疑人除构成自首以外的如实供述自己罪行的情形。坦白的主体是"犯罪嫌疑人",可以包括犯罪单位。坦白的成立条件包括:被动归案;如实供述自己的已被司法机关掌握的罪行或者如实供述司法机关虽未掌握、但与已掌握的罪行属同种罪行。坦白从宽是原则,不从宽是例外。避免特别严重后果的发生可以从四个方面进行认定。     

Megan's Law: Crime and Democracy in Late Modern America

To an unprecedented degree American society at the turn of the twentieth century is governed through crime. Nearly three percent of adults are in the custody of the correctional system. Crime and fear of crime enter into a large part of the fundamental decisions in life: where to live, how to raise your family, where to locate your business, where and when to shop, and so on. The crime victim has become the veritable outline of a new form of political subjectivity. This essay explores the complex entanglements of democracy and governing through crime. The effort to build democratic governance after the American Revolution was carried out in part through the problem of crime and punishment. Today, however, the enormous expansion of governing through crime endangers the effort to reinvent democracy for the twenty-first century.     

复和正义和刑事调解

犯罪自产生以来 ,其恶性随着人类文明的进步而加大 ,相反 ,人类用于对付犯罪的刑罚手段却渐趋轻缓和文明。毫无疑问 ,到目前为止 ,刑罚仍是对付犯罪最为有效的手段之一 ,审判也是解决犯罪问题的主要方式。但由于建立在报应基础之上的刑罚 ,本质上是一种“以恶制恶” ,因此 ,其弊端也是显而易见的。由此 ,在处理犯罪问题时需要引入复和正义 ,并进一步扩大刑事调解范围     

人身危险性在我国刑法中的功能定位

人身危险性最基本的涵义 ,是指再犯可能性。再犯可能性 ,属于已然的社会危害性范畴 ,而主观恶性则是人身危险性的表征之一。人身危险性在罪责刑结构中 ,并不当然地起决定作用 ,只是在一定程度上起着修正的作用。我们可以以行为人没有人身危险性或者人身危险性较小为由 ,认定行为人的行为不构成犯罪 ;但不能以行为人存在着人身危险性或者人身危险性较大为由 ,认定行为人的行为构成犯罪。人身危险性不能增加刑罚量 ,只在其较小或没有的时候 ,起减小刑罚量的作用。无论在定罪中还是在量刑中 ,人身危险性只应具有这一单向性的功能     

VULNERABLE VICTIMS,MONSTROUS OFFENDERS,AND UNMANAGEABLE RISK: EXPLAINING PUBLIC OPINION ON THE SOCIAL CONTROL OF SEX CRIME

With the possible exception of terrorists, sex offenders in the United States experience a greater degree of punishment and restriction than any other offender group, nonviolent or violent. Members of the public overwhelmingly support “get tough” sex crime policies and display an intense hostility toward persons labeled “sex criminals.” The theoretical literature has identified three models potentially explaining public opinion on the social control of sex crime: the victim‐oriented concerns model, the sex offender stereotypes model, and the risk‐management concerns model. However, empirical work that directly tests these models is absent. This article addresses that gap by analyzing national survey data that includes measures of the key concepts outlined in the different theoretical models and items gauging support for punitive sex crime laws as well as support for sex offender treatment. The findings provide partial support for all three models but suggest that extant theories can better explain support for punitive sex crime policies than views about sex offender treatment.     

Crime,time, youth and punishment

This paper examines current developments in the social control of youth crime and delinquency in England and Wales. It argues that the usual critical explanations of these developments, in the form of the dispersal of discipline or the social authoritarianism thesis are inadequate. Instead, it is suggested that the punishment has taken on a more effective and efficient format in the management of this problem group than either of the above would have made possible.     

Criminal Justice and Diversionary Programmes in Singapore

The politics of crime and punishment generally pushes Governments to adopt harsher measures to fight crime, yet there is a movement in Singapore toward a softer approach in some areas. Singapore has a robust – many would say tough – criminal justice system, for some aspects of which it has and will continue to receive international criticism. Less known is the fact that it has recently invested in more holistic and compassionate strategies, through criminal diversion programs and community sentencing. This article explains this shift in the context of significant social and political changes taking place in Singapore, heralding a more liberal society and open Government. The paper also engages with some of the theoretical and philosophical arguments in favor of criminal diversion and provides a brief overview of the recent diversionary programs in Singapore.     

积极的一般预防

报应主义固守正义面缺乏保护社会的灵活性,一般预防重视秩序而有主张专断、残暴之嫌,特殊预防则专注于科学地矫治罪犯而排斥了正义。学者们的各种刑罚一体论模式都实际上并未将三者统一。刑罚根据的统一只有在将刑法系统看作社会大系统的一个有机组成部分、受制于社会大系统的情况下才有可能。根据社会的机能的立场,刑法只保证一点,即与认为规范是无效的意义表达相对抗。刑罚清楚地使犯罪成为一种不值得学习的行为。积极的一般预防理论是建立在刑罚以忠诚于法的市民为对象的基础之上的。报应论、一般预防论和特殊预防论三者只是对刑罚根据的外在表现的揭示。在对这三者的具体分析中可以看到它们内在地统一于积极的一般预防之中。