What is the Criminal Law for?

The traditional distinction between retributive and distributive justice misconstrues the place of the criminal law in modern regulatory states. In the context of the regulatory state, the criminal law is a coercive rule-enforcing institution – regardless of whether it also serves the ends of retributive justice. As a rule-enforcing institution, the criminal law is deeply implicated in stabilizing the institutions and legal rules by means of which a state creates and allocates social advantage. As a coercive institution, the criminal law requires justification as an instance of legitimate state authority. The operation of criminal justice institutions should therefore not be evaluated by reference to a distinct set of criteria, but should be evaluated by the same criteria that apply to coercive public institutions generally.     

Federal democracy,distributive justice and the future of Europe

Discussions pertaining to advancing strategic policies and democracy in the EU cannot afford to disregard a fundamental institutional dilemma of the EU's political system, the conflict between intense interdependence and power sharing in a multilevel polity for one, and autonomy of governments as a condition for democratic legitimacy of power for another. Conceiving the EU as a federal democracy draws attention to this dilemma. This concept suggests democracy-preserving modes of governance instead of coercive coordination (policy adjustment to competition in the common market, joint decision-making among governments, central regulation by law and court decisions), which so far predominate in most relevant policy fields. It also calls for procedures to cope with issues of distributive justice stemming from territorial disparities in resources and burdens. The article conceptualises these challenges and outlines feasible steps to advance federal democracy in the EU.     

“行政强制措施”与“行政强制执行”的分界

《行政强制法》既将行政强制措施与行政强制执行"合二为一"(合称为"行政强制"),又在同一法中将它们"一分为二"(分别规定"行政强制措施"与"行政强制执行")。之所以将它们"合一",是基于行政强制措施与行政强制执行有其行政行为上的共性;之所以将它们"分二",是基于行政强制措施与行政强制执行在法律设定和法律适用中的严格区别。作者在反思以前几种区别理论的基础上,认为行政强制措施与行政强制执行之间最为本质的区别应当是行政机关强制当事人履行的"义务"不同:强制当事人履行"容忍、不作为"义务者为行政强制措施;强制当事人履行"作为"义务者为行政强制执行。     

行政直接强制的程序探讨

行政直接强制既是行政强制执行法所要解决的核心问题，又是行政强制执行制度中最难以规范的问题，然而，行政直接强制程序的理论，尤其是行政直接强制程序的法律地位一直是行政法学界比较困惑的，在我国《行政强制执行法》即将制定之际，系统探讨这一问题是非常必要的。包括行政直接强制程序立法的现状评价、行政直接强制属性与程序性质确定、行政直接强制程序立法技术等。     

DIFFERENTIAL COERCION,STREET YOUTH,AND VIOLENT CRIME*

Using a sample of 300 homeless street youths, this study examines differential coercion theory and the role that coercion and the socialpsychological deficits of anger, low self‐control, coercive modeling, coercive ideation, and control imbalances play in the generation of violent crime. Results from cross‐sectional and prospective offending models that examine the individual mediators reveal that coercion has a direct relationship with violent offending as well as a relationship that is mediated by low self‐control, anger, coercive modeling, and coercive ideation. Although control imbalances have a direct relationship with crime, they do not mediate the relationship between coercion and crime. In the cross‐sectional model that contains all the mediators, coercion, low self‐control, anger, coercive modeling, and coercive ideation are associated with crime. In the prospective model that contains all the mediators, only anger, coercive modeling, and coercive ideation remain associated with crime. Results are discussed regarding future theory development and policy implications.     

Revisiting the role of distributive justice in Tyler’s legitimacy theory

Objectives

Tyler’s theory of legitimacy identified procedural justice and distributive justice as antecedents of legitimacy, but placed distributive justice in a relatively minor position compared with procedural justice. This has led to researchers paying less attention to distributive justice in the development of theory, despite consistent findings that distributive justice is important to a number of outcomes for criminal justice authorities. This report uses uncertainty management theory to revisit Tyler’s legitimacy model and gain a more nuanced understanding of distributive justice.

Methods

The proposed model is tested using a series of latent variable analyses conducted on a sample of 2169 adults and a factorial vignette design. The vignette design randomly manipulates outcome favorability and officer behavior during a hypothetical traffic stop. Multiple indicator multiple cause (MIMIC) models are then utilized to test the impact of these manipulations on perceptions of procedural justice and distributive justice. This is followed by a structural equation model that tests the relationships between procedural justice, distributive justice, and legitimacy.

Results

Officer behavior is a primary predictor of both procedural justice and distributive justice. Furthermore, the results demonstrate that distributive justice judgments are shaped by perceptions of procedural justice. Accordingly, distributive justice mediates the relationship between procedural justice and legitimacy.

Conclusions

Distributive justice should not be treated as a competing explanation for legitimacy evaluations, but as a concept that contextualizes why procedural justice is important.

     

刑事诉讼强制措施的适用应遵守比例原则——兼论相关检察监督

刑事强制措施作为刑事诉讼的重要手段和保障措施长期以来得到了充分的运用,但法律有关强制措施强度及其适用的规定存在着明显不足,客观上导致其在实践中被不正确适用甚至滥用。引进比例原则,对强制措施的适用加以合理限制,使其与被追诉人适用的刑罚相谐调,有利于其在刑事诉讼中发挥合理效能。     

分配关系的法律调整论纲

分配关系不仅是一种特定时空条件下的财产和利益在不同社会主体之间的分取与占有关系的直观表现 ,更是依存于特定社会制度的法律权力和权利在相关主体之间不同配置结果的集中反映。分配规则的正当性、分配过程的秩序性和分配结果的公平性等价值目标的实现 ,离不开法律的确认、维护与矫正功能的发挥。其中 ,分配权在国家、企业与居民之间的合理配置与行使 ,则是法律调整分配关系的作用机制和路径选择。我国社会分配公正目标的实现有赖于以分配权为核心的分配制度的不断改革与完善     

社会分配法的价值范畴分析

分配正义作为社会分配法的基本价值范畴,是一个由平等、自由、公平、效率等要素性价值目标构成价值体系。但是,在不同国家的特定社会经济条件下,分配法律制度的主导价值追求和目标排序是有明显差异的。在分配法律制度中,分配正义将通过基本原则这一价值载体来确认和指导法律调整分配关系的目标定位和路径选择。     

WTO体制下艾滋病药物强制许可的合法性探析--兼论我国艾滋病药物强制许可的启动

随着艾滋病在世界的不断蔓延 ,一些发展中国家纷纷启动艾滋病药物的强制许可 ;而一些西方国家及医药公司则反对艾滋病药物的强制许可 ,认为其是非法的。本文以WTO为视野 ,从国际法的角度论证了艾滋病药物强制许可的合法性 ,并提出了艾滋病药物强制许可对我国的借鉴意义     

The impact of situational factors, officer characteristics, and neighborhood context on police behavior: A multilevel analysis

While a considerable number of studies had been conducted to examine the effects of various variables on police behavior, very few studies had simultaneously analyzed factors that accounted both for police coercive and noncoercive behaviors. Equally limited is the research on the influences of officer characteristics and neighborhood context on police behavior controlling for all individual situational factors. Using observational and survey data collected by a large-scale project and hierarchical linear modeling techniques, this study assessed the effects of situational, officer, and neighborhood variables on police coercive and noncoercive actions, as well as the cross-level effects between these variables. Findings showed that situational characteristics played a strong role in determining officer coercive behavior, but not noncoercive activities. Similarly, officer-level predictors explained better officers' variation in coercive behavior than noncoercive behavior. Meanwhile, socially disadvantaged neighborhoods were more prone to receive coercive activities than were other neighborhoods. Implications for policy and future research are discussed.     

我国刑事强制措施的功能回归与制度完善

诉讼保障和人权保障是我国刑事强制措施的双重功能,惩罚教育、刑罚预支、证据发现以及犯罪预防等强制措施功能异化或者泛化的现象应当予以规范。未来我国强制措施的制度完善,应当以实现诉讼保障和人权保障功能回归为主线,秉持宪政视野、实践视野和国际视野,从整体上将强制措施区分为羁押措施和非羁押措施,实现逮捕与羁押相分离,设置独立的羁押程序,强化羁押的审查与救济,丰富羁押替代措施的种类并对其加以权利化改造,完善监视居住制度等。     

分配正义与收益公正分配

收益公正分配是转型时期社会公正的重要维度,维系人权保护、经济发展、社会稳定与国家治理,蕴涵着分配正义理论。多种因素决定经济法分配正义是复合正义,强化在市场分配机制基础上的国家再分配职能,以促进社会基本结构的公正。经济法分配正义理论通过奠定收益分配之理论基础,提供收益分配之制度属性的路径促进收益公正分配,进而实现以社会公正为中心的可持续经济发展,推动中国社会顺利转型。而以分配正义为衡量尺度,我国收益分配制度需要进一步完善。     

Organizational Justice and Job Satisfaction: A Test of Three Competing Models

Using nationally representative data, we test three theories about distributive and procedural justice and their relation to job satisfaction. Our results support the group-value model more than the personal outcomes model by showing that procedural justice is a more important predictor of job satisfaction than is distributive justice. Furthermore, although other research has supported the psychological contract model by showing that experiences with downsizing alter how procedural justice and distributive justice are related to organizational commitment, we find that downsizing does not alter their relationship with job satisfaction.     

Reflecting Upon Etic and Emic Perspectives on Distributive Justice

The study of distributive justice may be examined using two research perspectives. The first, etic perspective seeks to unveil the common characteristics that characterize the spectrum of distributive justice phenomena across different cultures and circumstances. This perspective focuses on the universal aspects of justice behavior, namely, general laws and causal explanations. The second, emic perspective focuses on the ways in which justice behavior is expressed in specific socio-cultural contexts. This paper proposes a three-part reflection on these two perspectives on distributive justice. First, we review the ways in which the emic, culturally specific perspective has hitherto been incorporated into research on distributive justice; second, we examine the ways which the etic and emic perspectives are employed in two empirical studies on justice perception in Israel; and, finally, we suggest possible ways in which an extended emic perspective can be further incorporated in the study of distributive justice. An earlier version of this paper was presented at the Social Justice Conference, University of Bremen, Bremen, Germany, March 2005.     

我国行政法上的强制执行:行为、定性及立法归属——兼论《行政强制法》或《行政程序法》与《行政诉讼法》对现行行政强制执行行为在调整范围上的划分

以我国行政法规范和行政诉讼法为依据 ,可归结出现行行政法上的八种强制执行行为。这些执行行为所构成的执行制度显有繁杂、零乱、遗漏、矛盾之缺陷 ,而且出现了主体、行为、程序之间的不协调性 ,存有行政强制执行由司法机关实施 ,司法强制执行由行政机关实施之“错位”现象。行政强制执行是对具体行政行为的执行 ,应当由行政机关通过行政程序实施 ;司法强制执行是对司法裁判的执行 ,应当由人民法院通过司法程序实施。根据这一理想规则 ,应对各种执行行为进行改造和重新定位 ,并把其纳入行政程序法或行政诉讼法所调整的不同范围 ,从而为行政程序法的制定和行政诉讼法的修改确定适用范围上的调整方案     

Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States

Intestate succession statutes should reflect the distributive preferences of intestate decedents. To date, these distributive preferences could only be inferred from distributive patterns found in wills. This telephone survey of 750 persons living in Alabama, California, Massachusetts, Ohio, and Texas supplements prior will studies and provides new insights concerning public attitudes about property distribution at death. The distributive preferences of the respondents revealed few significant differences that could be attributed to age, education, income, wealth, or occupational status. Two other important findings of this study suggest that a modern intestacy statute should provide that (1) the surviving spouse inherit the entire estate in preference to the decedent's issue or family of orientation and (2) issue who are in the same generation share equally in the estate.     

The analysis of coercive chains between children,mothers, and siblings

The study examines coercive episodes observed between young children, siblings, and their mothers in two samples of families. One sample consisted of aggressive children, the other of nonaggressive children. Aggressive children initiated more coercive chains, especially when the mother and the sibling had been acting neutrally, and engaged in longer chains than normal children. The longest coercive chain occurred when sibling conflict took place in the aggressive group. Findings showed the level of coercive behavior within chains was a function of the initiator of the chain. The initiator had substantially higher levels of negative behavior throughout the chain, compared to the level shown by the recipients of the chains. This held across both samples. Moreover, the initiator was more likely than the recipient to terminate the chain by displaying the last negative response.     

作为“中介”的“复合平等”——沃尔泽对罗尔斯分配正义理论的批判及其限度

沃尔泽认为,罗尔斯通过＂原初状态设置＂所演绎出的＂正义二原则＂只是一种实现通常之＂简单平等＂的分配正义原则,无法解决由诸多领域所构成之社会的分配正义问题。因而基于对西方世界分配现状的观察及其人性观,沃尔泽提出了＂复合平等＂的分配正义理论。事实上,只有罗尔斯的＂正义二原则＂才能有效实现社会的分配正义。因此,沃尔泽的分配正义理论实际上只是深刻理解罗尔斯＂正义二原则＂的＂过渡理论＂或＂中介＂,而不是对后者的根本性超越。     

Why Is There a Strong Positive Correlation Between Perpetration and Being a Victim of Sexual Coercion? An Exploratory Study

The purpose of this research was to determine if the correlation between perpetration and being a victim of sexual coercion is due to a lack of self-control, a coercive lifestyle, or dysfunctional romantic relationships. Two hundred and sixty-two college students completed measures of perpetration and being a victim of sexual coercion, lack of self-control, coercive lifestyle, romantic partner’s coercive lifestyle, and partner’s perpetration and being a victim of sexual coercion. Support was not found for the lack of self-control and coercive lifestyle explanations; support was found for the dysfunctional relationships explanation. Multiple regression analyses found that the self-control variable that best (negatively) predicted both perpetration and being a victim of sexual coercion was valuing long-term, committed romantic relationships. Interventions to prevent perpetration and being a victim of sexual coercion should focus not only on the individual victim/perpetrator but also on promoting functional romantic relationships.