秦及汉初逃亡犯罪的刑罚适用和处理程序

秦及汉初律令对逃亡犯罪的规定繁复而成体系。逃亡大体可分为一般逃亡和犯罪后逃亡二类。在刑罚适用上,一般逃亡的刑罚因逃亡者身份不同而各异,犯罪逃亡的刑罚是以本罪刑罚为基础,叠加亡罪刑罚后加以确定。在处理程序上,吏、民的一般逃亡不导致审判和追缉程序,刑徒或特别身份人逃亡的,区分亡罪刑罚轻重,分别适用审判并通缉的“论,命之”程序和审判并命令其出现、领受刑罚的“论,令出、会之”程序。犯罪逃亡的,以本罪刑罚为基准,分别适用“论,命之”和“论,令出、会之”程序,后一程序中未按规定领受刑罚的,以刑罚已执行时逃亡来论断其刑。在不同类型逃亡犯罪及司法程序的不同阶段自出的,有处以笞刑、本罪之刑减一等或本罪之刑叠加亡罪之刑后总减一等等不同减刑效果。     

Homicides in East Berlin from 1980 to 1989. Part II: results of investigations and legal consequences

The second part of the study on homicides in East Berlin from 1980 to 1989 describes the solving of crimes, the usual features of offenders and the legal assessment according to East German law. Of the 139 homicides 126 crimes (= 90.6%) could be solved. Most of the offenders had a low social background and often belonged to the victim's circle of friends or family. Situational homicides and elimination crimes were the most common crimes. In the legal assessment sentences for murder were predominant.     

Morphology and phenomenology of death by kicking (II)

In the years from 1982 to 1995, 20,504 autopsy cases were examined at the Departments of Forensic Medicine in Hamburg and Greifswald. In 103 cases death was caused by kicking. In the Greifswald area, the occurrence of kicking as the cause of death could be demonstrated in 68 cases (30% of all homicides), which is in contrast to the observations in Hamburg, were kicking amounted to only 2.5% of the homicides. Most of the victims (average age 44 years) were under the influence of alcohol (mean blood alcohol concentration 1.75/1000), and most were on social support. The victims often showed other signs of blunt trauma such as blows with the fist and strangulation. In a few cases, cutting and stabbing wounds were also found. In the majority of cases death was due to severe haemorrhages and aspiration of blood in addition to the direct effects of the head injuries. The crimes were committed by one person in 46 cases, two in 20 and three in 4 cases. The perpetrators (average age 27.6 years) were always younger than the victims. Case reports show that fatal kicking was mostly triggered by relatively trivial arguments. None of the incidents were preplanned by the perpetrators. In contrast to an expected higher incidence of kicking deaths in the urban area of Hamburg, these crimes occurred ten times more frequently in the rural area of Greifswald.     

Tough-on-Crime Tolerance: The Cultural Criminalization of Bigotry in the Post-Civil Rights Era

This article extends critical scholarship on the problem of hate crimes in the U.S. into the field of cultural criminology. Highlighting the role cultural production plays in reinforcing identity-based social harms, this study analyzes the cultural construction of the figure of the white hate crimes perpetrator, or “the hater.” The article integrates findings from a comprehensive discourse analysis of major U.S. news sources from 1986 to 2010 with insights from the fields of whiteness studies and critical criminology. The study first finds that the figure of the hater embodies modern day bigotry through terse stereotypes about white poverty, masculinity, hate group membership, and criminality. It then argues that these widely distributed discursive performances create rhetorical opportunities to define bigotry as an individualized problem with law enforcement remedies and to further normalize extreme hate crimes cases. Ultimately, a new theoretical construct, “post-difference ideology,” is mobilized to challenge the hater’s prescribed role as folk devil.     

单次摄药毛发分析的研究进展

“迷药犯罪”是指对被害人下药后实施性侵犯、抢劫、诈骗等犯罪行为。单次摄入的镇静催眠类或迷幻类药物在体内迅速代谢,故难以用血液、尿液检测等常规方法来提供摄药证据,而毛发分析的长检测窗特点在解决这类案件时具有重要的价值。单次摄药的毛发分析要求检测方法有很高的灵敏度,需要用二级质谱检测器进行分析,且从头发采样、去污、水解、提取、分析的各环节均应注意防止污染,避免出现假阳性结果。采集的头发必须进行分段分析,除检测对应案发时间的头发段外,还应把其它头发段的检测结果作为对照,据此对分析结果作出严谨、科学的解释。目前已建立了31种镇静催眠药、6种苯丙胺类衍生物、GHB、硫喷妥及其代谢物戊巴比妥以及乙醇代谢物EtG等的检测方法,可以应用于实际案件的毛发分析。     

Power, crime and criminology in the new imperial age

As a consequence of the U.S. pursuit of neo-liberal global hegemony in the post-Soviet era, the language of empire has returned to political discourse and social analysis after an eighty-year absence. Although the pursuit of empire and the exertion of imperial control is deeply and demonstrably injurious to the nations and people subjected to this control, orthodox criminology has given relatively little attention to this emerging world of transnational social injury, choosing instead to continue its traditional focus on private crimes of greed, lust and rage. In this essay I detail how legal formalism, methodological individualism, ameliorative motives, mass-communications and the reward structure of orthodox criminology combine to form a meta-theoretical framework that has kept the criminological gaze averted from injurious actions of transnational structures of power. I then offer an alternative framework for a criminology of empire and other power crimes focused on how intersections among economic, political and cultural processes generate social injuries that are analogous to crimes in their nature and consequences, and that, as a result should become as significant a focus of criminological inquiry as the street crimes that now dominate criminological research and writing. What do we do with our knowledge about the suffering of others, and what does this knowledge do to us? -Stanley Cohen      

过错被害人国家补偿问题刍议

我国已逐步展开被害人救助工作试点，虽然离完善的国家补偿制度距离尚远，但对制度设计的细节问题仍应提前研究。被害人补偿的正当性难以通过国家保护不力或社会风险分担予以说明，在规范语境下其正当性在于社会型国家的宪法目的设定。国家责任在补充性之外兼具福利性，因而补偿对象的关键特征为生活陷入困境，而不限于故意犯罪、暴力犯罪或身体伤害犯罪，补偿范围可分为保障性与补充性两部分，应以不同标准区别对待。过错被害人从事实与规范的角度可分为六种类型，对其补偿的扣减或拒绝，总体原则是保障性补偿须谨慎扣减，补充性补偿可灵活掌握，以务实的态度更好地实现国家补偿制度的目的。     

社会危害性在犯罪构成理论中的地位探析

目前在刑法学界存在着社会危害性理论备受指责的现象,有的学者甚至认为应将社会危害性逐出我国的犯罪构成理论。这是不科学的。我们应该运用立体动态思维的方式正确分析犯罪概念、犯罪构成与罪刑法定主义的关系,不但要保留社会危害性的地位,更重要的是将其明确作为一个独立的犯罪成立的条件,这样才是对传统犯罪构成理论批判性的发展。     

Alleged Biological Father Incest: A Forensic Approach

Paternal incest is one of the most serious forms of intrafamilial sexual abuse with clinical, social, and legal relevance. A retrospective study was performed, based on forensic reports and judicial decisions of alleged cases of biological paternal incest of victims under 18 years old (n = 215) from 2003 to 2008. Results highlight that in a relevant number of cases: victims were female; the abuse begun at an early age with reiteration; the alleged perpetrator presented a history of sexual crimes against children; sexual practices were physically poorly intrusive, which associated with a forensic medical evaluation performed more than 72 h after the abuse, explain partially the absence of physical injuries or other evidence—these last aspects are different from extrafamilial cases. In conclusion, observations about paternal incest are likely to exacerbate the psychosocial consequences of the abuse and may explain the difficulty and delay in detect and disclose these cases. Few cases were legally prosecuted and convicted.     

Female criminals—It's not always the offender!

Numerous crimes (including murder), all having a common denominator, occurred in Germany and Austria between 1993 and 2009. All of these cases presented with identical female DNA traces being found at the crime scene. The crimes committed differed markedly, as did the suspects involved, which were of varied origin. Many of these cases could be solved. However, none of the suspects could identify an involved female. Fourteen of these cases (including one murder) occurred in Upper Austria.A special task force of the Austrian police, together with the Institute of Legal Medicine in Salzburg, began systematically searching for errors in the investigative process after the cases became more and more incoherent and nebulous. In the end, the DNA trace evidence was shown to be contaminated. A woman involved in the manufacture of the cotton swabs turned out to be the source of the female DNA profile.Following this, several products of other manufacturers were tested for contamination with DNA. It was noted that cotton swabs which had been sterilised with radiation were often contaminated. As a result, it is recommended that the manufacturing process, as well as the products themselves used in collection of DNA trace evidence, should be re-evaluated with the emphasis on preventing contamination.     

对当前农村涉爆犯罪有关问题的思考

近年来,农村涉爆犯罪突出,给人民生命财产、社会公共安全造成严重的危害,对构建社会主义和谐社会造成极大的影响。通过对当前农村涉爆犯罪个案和总体分析,探讨引发这类案件的原因,针对这些情况,提出积极疏导化解纠纷、矛盾,活跃农村文化生活,加强法制宣传教育;对民爆器材实施“封闭管理”;注重涉爆犯罪信息收集,严厉打击涉爆犯罪,维护农村社会稳定。     

犯罪本质特征新说 --社会学与刑法学立场分野下的认识

行为具有严重的社会危害性,在社会学意义上无疑是犯罪。但在刑法学意义上讲,却并非如此。刑法上的犯罪,离不开法律的规定。刑事违法性,是立法者将那些具有严重社会危害性的行为纳入犯罪圈的标识,是判定罪与非罪的惟一标准。在个罪成立与否的判定中,既要考虑刑法分则的规定,也要考虑刑法总则规定的犯罪定义,以防止形式的犯罪构成解释论。在刑法学中,犯罪的本质特征应该是立法者选定的行为的严重社会危害性,而非仅为行为的严重社会危害性。     

Counting the cost of crime in Italy

We gauge the cost of crime in Italy by concentrating on a subset of offences covering about 64% of total recorded crimes in the year 2006. Following the breakdown of costs put forward by Brand and Price, we focus on the costs in anticipation, as a consequence, and in response to a specific offence. The estimated total social cost is more than €38 billion, which amounts to about 2.6% of Italy's GDP. To show the usefulness of these measures, we borrow the elasticity estimates from recent studies concerning the determinants of crime in Italy and calculate the cost associated with the surge in crime fuelled by unemployment and pardons. Indeed, in both cases such costs are substantial, implying that they should no longer be skipped when assessing the relative desirability of public policies towards crime.     

湛江市农村地区社会稳定和治安问题研究

湛江市位于我国大陆的最南端,农村面积大,农业人口多,农村的社会秩序和治安状况对全市治安稳定至关重要。湛江农村最为突出的问题是黑恶势力犯罪、涉枪案件、涉毒涉赌、征地拆迁补偿、土地权属纠纷和修路以及民风民俗活动引发的群体性事件、精神病人作案和交通事故引发的事件等7方面。影响湛江市农村地区社会稳定和治安秩序问题的成因主要有：经济社会发展失衡;基层政权组织软弱涣散;一些历史遗留问题积重难返;黑恶势力坐大成势,打击难度大;农村派出所力量薄弱和精神文明建设滞后,群众素质低等。解决湛江农村地区的社会稳定和治安问题,根本出路在于不断深化经济社会改革,推进农村精神文明建设和物质文明建设。而当务之急,必须明确维护稳定和治安秩序的责任制,加强基层政府和群众自治性组织建设,大力开展整治活动,不断提高农村社会管理能力和水平,这样才能使湛江农村地区逐步走向有序。     

论社会转型期警察刑事执法的秩序价值

社会转型对社会秩序产生深刻影响,极易出现社会失序,严重的犯罪形势即为社会失序的一个显著表现。警察刑事执法主要体现为对预防和惩治犯罪。当前,我国正处于社会转型期,面对刑事犯罪高发的局面,应当赋予公安机关更有效的打击犯罪的权力,提高警察刑事执法效率以及公平正义执法,以遏制犯罪的高发态势,维护社会秩序稳定。     

金融海啸下涉众型合同诈骗犯罪的侦防对策

在国际性金融海啸的冲击下,我国部分地区的出口企业面临巨大压力,伴随部分企业经营困难和倒闭,涉众型合同诈骗犯罪案件日益增多,并可能在一定区域短时间内有集中连锁爆发的危险,这将严重破坏经济秩序并威胁社会稳定,极易引发群体性事件,而在办理这类案件的过程中,公安经侦部门面临困境,因此,从经侦工作的视角,探索应对涉众型合同诈骗犯罪对策,寻求通过合理配置警力和协作机制、动员社会力量等有效途径遏制和防范这类犯罪。     

Penal Disenfranchisement

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners (or serious offenders) is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes.     

From Betrayal to Violence: Dante's Inferno and the Social Construction of Crime

This essay reflects on contemporary justifications for the grading of crimes, especially the conception that the gravity of crimes is rooted in "desert," understood to depend particularly on the offender's state of mind and to a lesser extent on the harm done or threatened to society.
Drawing on Dante's Inferno, the essay shows how the gravity of crimes is socially constructed. For reasons rooted in the sociopolitical forces, as well as the philosophy and law of his day, Dante found the crimes most deserving of punishment to be those of betrayal of trust. He conceived such crimes to be the most deliberate and to do the most damage to the social fabric. Contemporary law has found that crimes of betrayal are generally less deserving of punishment than crimes of violence; the essay shows how social and historical forces, including even the traditions upon which Dante drew, have shaped this choice. In the course of grading crimes in this way, the law has altered its conceptions of "intent" as well as of harm to society so radically that the notion of "desert" has lost much of its coherence. The importance of trust in modern society, moreover, has been misunderstood in the contemporary grading of crimes.     

论立功制度在司法实践中的正确适用

我国刑法中的立功制度关涉刑罚的裁量与执行两大环节 ,是一项重要的刑罚制度。在对立功的认定上 ,应划清坦白、自首与立功的界限。共同犯罪中犯罪分子只有揭发共同犯罪以外的他人的犯罪 ,经查证属实的才成立立功。对帮助立功应予认定 ,对司法工作人员犯罪后提供“利用职务之便得到的情报”不宜认定为立功 ,犯罪分子立功后又脱逃不影响先行立功的性质。立功者刑事责任上的从宽 ,对未决犯表现为刑罚裁量过程中的从轻、减轻或者免除处罚 ,对已决犯表现为刑罚执行过程中的减刑或消除犯罪记录     

“A CROSS-BURNING IS NOT JUST AN ARSON”: POLICE SOCIAL CONSTRUCTION OF HATE CRIMES IN BALTIMORE COUNTY*

Growing public concern over racial and ethnic conflict and a perceived increase in hate crimes during the 1980s have led to legislation expanding the scope of the law and the severity of punishment for such offenses and to police-initiated efforts to focus attention on hate crimes. Although a number of critiques have examined the legislative approach, little attention has been devoted to the police response. This article examines the rationale for a police initiative in addressing hate crimes; the characteristics of incidents labeled as such in one jurisdiction, Baltimore County, Maryland; and some of the problems in defining, identifying, and verifying bias motivation. Because about 40% of the offenses initially considered by the Baltimore County Police Department to be motivated by racial, religious, or ethnic (RRE) prejudice subsequently are not verified as RRE motivated, a closer examination of all such cases permits insight into the social construction of “bias motivation” and related issues raised by a police hate-crime program. These include determining what forms of bias are eligible for special responses; identifying bias motivation; weighing the victim's perception of the event; determining the line between criminal and non-criminal incidents; and adopting consistent standards for verifying ambiguous events.