我国人权保障中"有限制"沉默权制度

人与人之间权利的和谐是构建和谐社会的重要标志,沉默权是犯罪嫌疑人、被告人的一项重要的诉讼权利,是对国家公权的制约,它是和谐人权社会的重要内容,没有沉默权的权利体系是不完备的权利体系.沉默权制度是刑事诉讼进步的标志,作为一种成熟的法律制度,沉默权制度在司法和审判的实践中起到了不容忽视的作用.我国目前的人权保障制度正日益完善,中国实行这项制度的时机已经逐渐成熟.本文通过对沉默权的论述,结合我国具体的司法实际,阐述在我国设立有限制沉默权对于构建和谐人权社会具有重要意义.     

Who has the right to govern online activity? A criminal and civil point of view

This paper compares how the Australian defamation case of Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56 and the English obscenity case of R. v. Perrin [2002] EWCA 747 dealt with the legal concept of publication in the transnational online context or, more specifically, with the issue as to how to treat a foreign online publication. Despite the different nature of the causes of action, with the former being a civil case and the latter being a criminal case, the article shows that, not only were the underlying jurisdictional issues the same, but that there were also significant similarities in the approaches taken to them. Both courts firmly rejected arguments in favour of an exclusive country‐of‐origin approach and stuck with the traditional country‐of‐destination orthodoxy. Nevertheless, it is argued that, given the different nature of and rationales behind civil and criminal law, as well as the less cooperative transnational criminal law regime, the same jurisdictional approach taken to both civil and criminal transnational activity may in fact yield substantially very different outcomes. Thus, the approach appropriate in the criminal law context may lead to undesirable over‐regulation in the civil law context.     

The right to counsel in Iranian criminal justice system

Criminal law deals with very important aspects of the life in the society. The subjects of the crime, health, reputation … are so important that endangering them requires punishment and it is told that the society in order to protect the public order should punish the perpetrators. There is no doubt that the criminals should be punished. The punishment enacted by the legislator should be proportional. The more serious the crime, the more severe the punishment. But, it seems that in the process of criminal trial, the accused has rights too. It means that society has not an absolute authority in accusation and punishment and in addition to the proportionality and justification of punishment the trial should be fair. In other words, it is not possible to speak about justice any more if the criminal is punished proportionally and rightly but not fairly, i.e. without allowing him/her to present his/her case, defend him/herself and obtain legal aid or sufficient information. Iranian criminal law, like other criminal justice systems in respecting the rights of the accused, has provided the right to counsel. This value can be expressed in the concept of the rule of law, recognized in international documents. It seems that the standards of the criminal procedure are mostly determined and developed under the influence of this concept. The current paper considers different aspects of the right to counsel in Iran.     

The effects of stealing thunder in criminal and civil trials

The effectiveness of a persuasion technique referred to asstealing thunder was assessed in two simulated jury trials. Stealing thunder is defined as revealing negative information about oneself (or, in a legal setting, one's client) before it is revealed or elicited by another person. In Study 1, 257 college students read or heard one of three versions of a criminal assault trial in which a damaging piece of evidence about the defendant was absent (no thunder), brought up by the prosecutor (thunder), or brought up by the defense attorney and repeated by the prosecutor (stolen thunder). In Study 2, 148 college students heard a civil negligence trial in which damaging evidence about the key plaintiff's witness was absent (no thunder), brought up by the defendant's attorney (thunder), or brought up by the witness himself (stolen thunder). In both studies, stealing thunder significantly reduced the impact of the negative information. A path analysis of the processes underlying the effect suggested that verdicts were affected because of enhanced credibility.Often a difficult decision in opening statements is whether, and if so how, to volunteer weaknesses. This involves determining your weaknesses and predicting whether your opponent intends to use them at trial. There is obviously no point in volunteering a weakness that would never be raised at trial. Where, however, that weakness is apparent and known to the opponent, you should volunteer it. If you don't, your opponent will, with twice the impact. (Mauet, 1992, pp. 47–48)We would like to thank Michelle Cox, Gim Koay, Dana Koay, and Ralph Mueller for their helpful input. Thanks also to Irv Horowitz and Steve Karau for their comments on earlier drafts.     

The gendered construction of expert discourse: An analysis of psychiatric evaluations in criminal court

According to critical literature, psychiatrization is a central feature of gendered social control. It operates in a twofold process: by orienting women to medical institutions rather than the penal system, and, for those women who do enter the criminal justice system, by favoring an interpretation of their behavior in terms of mental health problems. However, the production of gendered social control cannot be reduced to institutional decision-making; it also leaves its traces in various discursive forms. One such form is forensic psychiatrists' discourse on the offenders they evaluate. Our study analyzes these forensic reports as units of a computerized database. Our goal is to gain insight into the text by means of systematic quantitative and qualitative procedures. Even though the expert discourse is shaped by specifications requested by the court, the discourse examined here constructs two very distinct identities that do not correspond to stereotyped conceptions about femininity and masculinity.     

刑事附带民事诉讼死亡、残疾赔偿金审判探析

死亡赔偿金、残疾赔偿金的刑事附带民事赔偿问题，囿于立法、司法解释不明确和矛盾、司法实践中当事人赔偿能力低下、大多无财产可供执行的困难等诸因素，在是否列入刑事附带民事的赔偿范围及如何判赔问题上存在颇多争议。笔者在综合考察研究相关的立法、司法解释及刑事附带民事赔偿审判实践的基础上，主张应当列入赔偿范围且应当全额判赔。但应当给原告出具风险告知书并尽可能争取调解解决。进入强制执行阶段後，如有财产的，全额执行；如无履行能力的，则应中止或终结执行。同时，对因中止或终结执行而生活极端贫困被害人及其抚养人应给予国家补偿救济或“低保”。     

困境与出路:我国公民知情权的实现

目前 ,宪法修改的呼声越来越高 ,对此次修宪 ,人们议论最多的是如何进一步完善我国公民的基本权利体系 ,这既是宪法的一个根本问题 ,又是与国际人权公约接轨的需要 ,也是世界各国立宪经验的总结。就我国而言 ,由于现行宪法规定的公民基本权利不充分 ,因而应当入宪的公民基本权利较多 ,其中 ,当务之急 ,应将公民的生命权、财产权、知情权、公职权、迁徙自由权、公平审判权和生活环境权写入宪法。为此 ,本文对上述诸多权利进行了分析探讨。     

The right to a fair trial as a conceptual framework for digital evidence rules in criminal investigations

Digital evidence and digital forensics have a significant impact on criminal investigation. This requires an examination if the fair trial principle remains sound in the new domain.In this paper the right to a fair trial in Art. 6 ECHR and its interpretation in case law is analysed in order to clarify its connection to evidence law and its specific application to the investigation stage of criminal proceedings. It is argued that the principle implicitly enshrines a framework for the development of universal evidence rules . Derived are two-groups of evidence rules: equality of arms based and presumption of innocence based. For each group specific challenges in the digital investigation are outlined and discussed in the context of a new governance model for digital evidence.     

Neuroscience and behavioral genetics in US criminal law: an empirical analysis

The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment.     

Women against men: An examination of domestic violence based on an analysis of official data and national victimization data

In recent years, increased attention has been focused on the victimization of women in domestic assaults. Several studies, derived from police reports, shelter populations, and general social surveys have documented the incidence and nature of this phenomenon. A companion discussion of the victimization of men in domestic assaults has been conspicuously absent. This article adds to our knowledge on domestic violence research by examining the incidence and correlates of male victimizations within the domicile. The findings are based on an analysis of approximately 6,200 cases of domestic assaults reported to law enforcement authorities and of national victimization data reported to the National Crime Survey.