作为公权利的刑事辩护权

我国刑事诉讼中存在的辩护难,主要原因是侦查、公诉、审判机关没把辩护权作为公权利对待。作为公权利的辩护权,要求侦查、检察、审判机关履行程序上的保障义务和实体上的给付义务。侦查、公诉、审判机关把辩护权作为公权利看待,切实履行对辩护权的义务,是诉讼实践中解决辩护难的根本措施。     

The Allocation of Environmental Investigation Costs between the Defense and Indemnity Obligations under General Liability Policies

For policyholders responding to administrative demands of federal or state environmental agencies, the allocation of environmental consultant costs between a carrier's defense and indemnity obligations is a frequent source of disagreement. Likely due to the fact-sensitive nature of such disagreements, existing case law lacks consistency in the analysis of such issues. This article analyzes different legal standards adopted by courts to analyze this issue. Although each court recognizes the fact-intensive nature of the inquiry, some courts are quite detailed in their analysis while others simply seek to achieve a sense of “rough justice.” As a result, attorneys involved in such disputes must have both an understanding of the specific legal standards employed by the courts as well as an understanding of the specific facts that may ultimately tip the scales.     

论抗辩与抗辩权

抗辩权包含在抗辩之中。抗辩权乃专指对抗他人请求权行使的权利。抗辩权具有永久性、无被侵害可能性、不可单独让与性、无相对义务观念性等四个特征。抗辩和抗辩权之间、抗辩和反诉及否认和反驳之间,都存在着明显的区别。     

Estimating Environmental Costs

A database of environmental remediation costs is described as the response cost database (RCD). The database, which contains both capital and operating costs, includes 220 entries for complete activities ranging from studies to remedy components, such as caps, dredging, and pump and treat systems. Information and data sources for the RCD included actual costs from the literature, construction handbooks, and U.S. Environmental Protection Agency-approved software such as RACER. Costs were compared to benchmarks, such as from actual projects, when possible. Guidance on assumptions and scaling is provided with unit costs. The database was developed by environmental engineers experienced in the activities included and thus represents insightful estimation. The RCD may be useful for valuation of environmental portfolios or projects for planning, financial reporting, project management, financing, or mergers/acquisitions.     

Opportunity Costs Pacifism

Law and Philosophy - If the resources used to wage wars could be spent elsewhere and save more lives, does this mean that wars are unjustified? This article considers this question, which has been...     

辩护律师有效辩护的评价及其实现

审判中心主义是一个刑事诉讼程序内的话语,在该话语体系中,犯罪嫌疑人、被告人的辩护权有效行使是庭审实质化不可缺失的构成要素。我国《刑事诉讼法》第37条的规定是有效辩护的评价标准。评价主体是当事人和法律职业者。辩护律师有效辩护的评价标准,是律师诉讼程序的过程标准,而不是以案件的司法裁判结果为标准。可视性的辩护律师有效辩护的实现方式,是改革现行法庭审判程序的简单化运作模式,改革刑事判决书、裁定书对辩护律师辩护观点的评述,扩大庭审网络同步直播的案件范围,许可被告人以律师辩护无效为由提起上诉,许可辩护律师将未决案件争议点诉诸于公共领域,接受当事人和社会民众的检视。     

Mediator Settlement Strategies

Settling cases poses a challenging task for the mediator. Most disputes are hotly contested by both parties or they would not have progressed to the point of entering the court arena or mediation. Yet, despite differences in the nature of their cases, the organization of each program we have studied, and the style of mediation predominating in each, striking similarities exist in the techniques used by the mediators to settle cases. Observation of over 40 different mediators in 175 mediation sessions in three programs suggests that in order to do the job which they are charged with accomplishing—bringing mediation cases to settlement— mediators develop a repertoire of strategies employing a variety of sources of power. Mediator strategies fall into four principal categories: presentation of self and the program, control of the process of mediation, control of the substantive issues in mediation, and activation of commitments and norms. Mediators empower themselves by claiming authority for themselves, their task, or the program based upon values external to the immediate situation, or manipulate the immediate situation so that settlement is more rather than less likely. Based upon their differential use of these strategies, mediator styles fall along a continuum between two types: bargaining and therapy. Mediation seems to range between a bargaining process conducted in the shadow of the court to a communication process which resembles therapy in its focus upon exploring and enunciating feelings .     

思想有多远,监狱管理创新就能走多远

党的十六届四中全会提出要＂加强社会建设和管理,推进社会管理体制创新＂。党的十七大提出要＂健全党委领导、政府负责、社会协同、公众参与的社会管理格局＂。     

程序性辩护之初步研究

程序性辩护是辩护方行使诉权的一种重要方式,其直接目的是促使法庭宣告警察、检察官或法官的程序性违法行为无效,从而使“官方违法者”遭受某种程度的惩罚和制裁,使被侵害的权利获得司法救济。我国应按照诉权与裁判权相互制衡的理论,重新构建程序性辩护制度。当然,当前我国程序性辩护制度的重构还面临很多现实困境和体制上的障碍。     

The Cultural Defense

Because of immigration in the West, increased cultural diversity poses a variety of problems for the criminal justice system. This paper examines whether a so-called "cultural defense" ought to be allowed as a freestanding defense to a criminal charge. Such a defense would "negate or mitigate criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based on the actor's cultural heritage or tradition." The cultural defense, as a formal defense, and the use of cultural evidence in order to buttress one of the traditional defenses, are distinguished. Three cases are discussed to illustrate the issues. The possible similarity of the cultural defense to an ignorance or mistake of law defense is then considered. The latter is accepted by such theorists as Gunther Arzt and George P. Fletcher and also apparently in German law, but it is rejected by Jerome Hall on the ground that it undermines the objectivity of the criminal law. The similarity, however, is shown not to hold. It is concluded that a freestanding cultural defense should not be allowed.     

论量刑辩护

量刑辩护是随着量刑制度的改革而逐渐引起重视的一种辩护形态.相对于无罪辩护、罪轻辩护和程序辩护来说,量刑辩护具有独立的诉讼目标,也需要有相对应的独立辩护操作方式.收集量刑信息、遘选出量刑情节、提出量刑意见、对公诉方量刑建议进行质疑并最终说服法院接受本方的量刑主张,是量刑辩护的基本内容.对于有着"重定罪、轻量刑"传统的中国法院来说,对量刑辩护的重视,可以帮助其获取更为丰富、全面的量刑信息和量刑意见;而对于偏重"无罪辩护"的中国律师界来说,应当将量刑辩护视为一种独立的、专业化的辩护形态,并确保这种辩护活动得到富有成效的展开.     

Recovering deleted data from the Windows registry

The Windows registry serves as a primary storage location for system configurations and as such provides a wealth of information to investigators. Numerous researchers have worked to interpret the information stored in the registry from a digital forensic standpoint, but no definitive resource is yet available which describes how Windows deletes registry data structures under NT-based systems. This paper explores this topic and provides an algorithm for recovering deleted keys, values, and other structures in the context of the registry as a whole.     

Recovering deleted data from the Windows registry

The Windows registry serves as a primary storage location for system configurations and as such provides a wealth of information to investigators. Numerous researchers have worked to interpret the information stored in the registry from a digital forensic standpoint, but no definitive resource is yet available which describes how Windows deletes registry data structures under NT-based systems. This paper explores this topic and provides an algorithm for recovering deleted keys, values, and other structures in the context of the registry as a whole.     

The Wasted Costs Jurisdiction

The wasted costs jurisdiction is flawed for six reasons, based on an analysis of all reported cases in the last nine years and five years of statistics provided by the Bar Mutual Insurance Fund Limited, and despite the guidance laid down by the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205. First, it is very costly proportionate to the amount recovered. Secondly, judges can initiate a wasted costs enquiry, which is unfair and even more disproportionately costly. Thirdly, it is procedurally complex. Fourthly, it is unpredictable whether the client will waive privilege, and what the consequences will be whether or not privilege is waived. Fifthly, it is not possible for solicitors and barristers to make contribution claims against each other. Sixthly, it is mostly used against lawyers representing legally aided litigants from whom costs cannot be recovered.     

试论程序辩护

程序辩护是刑事诉讼民主、文明的体现,在我国,无论诉讼理论还是司法实践对程序辩护的关注明显不足。因此有必要对程序辩护的涵义、内容、价值作深入分析,进而提出完善程序辩护的对策建议。     

论不在犯罪现场抗辩

不在犯罪现场抗辩属于一种后发制人式的积极辩护,未经预先告知而在庭审中抛出,将重创控方指控。英美国家往往要求辩方在审前程序中以书面方式预先告知控方其意欲在庭审中提出此种抗辩,并开示据以证明该抗辩成立的证人姓名等信息,以消除此种抗辩的突袭性。新《刑事诉讼法》引入了不在犯罪现场的术语,而未确立相关的程序规则。借鉴域外成功的立法经验完善我国不在犯罪现场抗辩的程序规则不失为明智之举。