帮助犯概念与范畴的现代展开

传统的"四要件"犯罪构成理论前途未卜,以该理论为基础构建的共犯体系及相关知识亟需"安检"。与教唆犯相比,学界对帮助犯的研究有"厚此薄彼"之嫌,以通说有关帮助犯的概念为检讨契机,对帮助犯修正的构成理论"再修正",继而重新厘定帮助犯与相关范畴的关系,对正确定罪与合理量刑具有重要的参考价值。     

R. (Martin) v Mahony: the History of a Classical Certiorari Authority

R. (Martin) v Mahony, a decision of the Irish High Court of 1910, continues to be acknowledged by modern textbook writers as a leading authority for the classical rule that certiorari could not correct error of law. This rule, which considerably reduced judicial superintendence of magistrates' courts, had been established by the English court of Queen's Bench in the 1840s. However, the rule was repudiated by the Exchequer Division in Ireland in the late 1880s, which developed a novel, liberal theory of certiorari. This doctrinal innovation, which was used in overturning convictions under the anti-boycotting statute, the Criminal Law and Procedure Act 1887, appalled sections of Lord Salisbury's government, was disapproved of by the English courts, and split the Irish judiciary. The division caused by the doctrine persisted until 1910 when the Irish High Court, having assembled in banc in Martin's Case in order to resolve the impasse, re-established orthodox English doctrine.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Kogan v Martin: A New Framework for Joint Authorship in Copyright Law

The Court of Appeal has set out a new framework for the application of copyright law's joint authorship test in a recent landmark case. Kogan v Martin brings some welcome clarity to the complex joint authorship landscape, embedding an inclusive pro-collaboration default standard. This case note contrasts the appeal court's nuanced framing of the dispute with the first instance court's narrower approach. The note then examines the new joint authorship framework and explains how it allows the test to be applied with an eye to the reality of collaborative creative endeavours. Finally, the significance of Kogan v Martin is highlighted, as are some questions which remain unanswered.     

Complicity in International Criminal Law and Canadian Refugee Law: A Comparison

International criminal law is normally seen as the purview ofcriminal prosecutions, either internationally or domestically.However, international criminal law is also increasingly beingapplied in refugee law. This is because the 1951 Refugee Conventioncontains an exclusion clause prohibiting asylum seekers fromobtaining refugee status if they have committed a crime againstpeace, a war crime or a crime against humanity. Thus, refugeelaw refers back to international criminal law; however, whileinternational criminal tribunals deal with persons who bearthe greatest responsibility, in actual practice persons whohave been excluded from refugee protection have been mostlyfrom the lower echelons of organizations involved in atrocities.This article, based on Canadian case law, examines the conceptsof complicity, aiding and abetting and joint criminal enterprisefrom both an international criminal law point of view and froma Canadian refugee law angle, in order to determine whetherthese notions have similar contents in the two jurisdictions.     

危险驾驶罪犯罪构成及相关问题研究——以风险社会管理为视角

德国社会学教授乌尔利希.贝克指出,风险社会已成为当今社会的中心议题。为了实现对风险社会的管理,我国在立法上,特别是刑事立法上不断与时俱进,进行了相应的修改,危险驾驶罪作为抽象危险犯,是刑罚处罚的早期化,它是风险社会中风险控制的体现,能实现刑法的提前保护,又能充分保障人权,防止刑罚权滥用。     

刑讯逼供致人伤残、死亡的定罪及证明责任

刑讯逼供罪“致人伤残、死亡的 ,依照本法第 2 3 4条、第 2 3 2条的规定定罪从重处罚”应属于可反驳的推定犯 ,即立法推定的故意伤害罪、故意杀人罪。推定犯中 ,公诉机关和被告人各自承担相应的证明责任。推定犯具有合理的立法理由和目的