为自己作证的权利及其真实义务——论英美法被告人作证权制度及其对大陆法系的影响

被告人作证权制度是英美法特有的一项制度,是在十九世纪中期边沁功利主义思想影响下确立的。在英美法国家,被告人如果要在法庭上陈述事实就要像其他证人一样,走上证人席,宣誓作证。被告人作证时不受不得强迫自证己罪原则的保护,对控辩双方的提问必须如实回答,故意虚假陈述将构成伪证罪。二战之后,部分大陆法国家或地区在改造职权主义庭审方式时,都不约而同地借鉴了被告人作证权制度,形成了相对独特的调查被告人程序。我国也不例外。但我国的调查被告人程序不符合无罪推定原则、控辩平等对抗原则和证明责任分配原则的精神,有待进一步的完善。     

Explaining differences in EMAS participation rates across Europe: the importance of institutions,incomplete information and path dependence

What factors shape environmental policies across Europe? In order to answer this question most economists would probably adopt a Public Choice approach. This approach has convincingly explained some aspects of environmental policies that exist in a similar fashion across Europe. But why do many environmental policies differ across European countries? This article argues that in order to understand differences in environmental policies in Europe North’s analysis of institutional change focusing on formal and informal institutions, incomplete information and path dependence is useful. North’s approach is applied to explain differences in a particular field of European environmental policy: The implementation of the EU’s Eco-Management and Audit Scheme (EMAS) in Germany, the Netherlands, and the UK. The starting point of the analysis is the observation that participation of companies in EMAS markedly differs between countries. It is shown that these differences can be explained with differences in formal and informal institutions in the three Member States, incomplete information of relevant actors, and path dependence.     

论举证责任及其科学概念的表述

举证责任是证明理论中的核心概念,它与诉讼理论及其诉讼结构等有着内在的联系,其概念的表述亦存在诸多的不同.许多学者认为我国历史上不存在举证责任问题,其实只要对我国历史上不同证据制度进行剖析,就不难发现我国也是存在举证责任方面的规范的.西方各国关于举证责任的理论与配置研究相当深入,因诉讼制度的区别而有其差异.通过古今中外的考查,可对举证责任的科学概念作出界定,使研究引向深入.     

Do Lawyers Impair Economic Growth?

The large U.S. legal profession hurts economic productivity in the United States and our economic competitiveness abroad according to a common claim A number of studies support that claim, but they suffer from serious flaws. I reexamine the hypothesis that large lawyer populations impair economic growth and suggest that it lacks theoretical and empirical support. The hypothesis depends on false assumptions about the organizational capability and interest of the legal profession; the empirical research in sup port of the hypothesis depends on flawed lawyer data, unusual combinations of high lawyer populations and low economic growth in one or two countries, and the unjustified use of lawyer population figures from the 1980s in analyses of economic growth prior to that period. I present the results of research on lawyer populations and economic growth among the US. states and in a sample of countries, correcting for the worst flaws of past research The results do not support the claim that large lawyer populations impair aggregate economic growth The analysis is not intended as the final answer on this important question but rather as an encouragement for a more sophisticated understanding of the role of lawyers in late modern economies.     

Robotisation of the manufacturing industries in the EU: Convergence or divergence?

This paper investigates whether convergence or divergence of robot densities in the manufacturing industries of 24 EU countries occurred over the period from 1995 to 2015. An answer to this question permits immediate conclusions with regard to the success of convergence of labour productivities within the manufacturing industries of the EU, since it is expected that the use of robots will contribute to the growth of labour productivity. The empirical analysis is based on the robot data of the International Federation of Robotics and uses the convergence testing approach proposed by Rodrik (Q J Econ 128(1):165–204, 2013). Taking all results together, empirical evidence points to non-convergence of robot densities for a first period from 1995 to 2005, while there is relatively fast conditional as well as unconditional convergence for the second period from 2005 to 2015.

     

亚洲法研究:过去、现在与未来

亚洲法研究始于二十世纪五、六十年代的美国,其后在欧洲、亚洲国家陆续展开。存在两种主要的亚洲法研究进路,一是以"法律与发展理论"为代表的西方法律视角;一是基于亚洲法的内部立场。美国的"法律与发展理论"经历了三个阶段的发展历程,各个阶段有其自身的特征。亚洲的亚洲法研究始于日本,韩国、中国等国家也正逐步展开,但其也存在若干困难。未来的亚洲法研究需要亚洲国家加强合作以及建立起对亚洲法的身份认同。     

Mapping an agenda for the study of youth sexual aggression in Europe: assessment,principles of good practice,and the multilevel analysis of risk factors

ABSTRACT

Sexual aggression is a serious threat to young people's sexual health in Europe, but establishing the exact scale of the problem has been hampered by a variety of conceptual and methodological problems. This article presents a framework for studying youth sexual aggression that addresses both prevalence and risk factors of victimisation and perpetration. It proposes a research tool to comprehensively assess the perpetration of, and victimisation by, sexual aggression that captures different coercive strategies, sexual acts, victim–perpetrator relations, and gender constellations. The instrument is rooted in a clear conceptual definition of sexual aggression and was pilot-tested in 10 countries of the European Union (EU). Furthermore, a list of good practice criteria is proposed to promote the quality and comparability of research on youth sexual aggression in Europe. A multilevel approach combining individual-level and country-level predictors of sexual aggression is outlined and illustrated with data from the pilot study in 10 countries.     

Legal and Extralegal Barriers to Delinquency

Recent research on deterrence has begun to couch discussions of legal sanctions in the context of broader perspectives that take account of other factors that may inhibit law violation. Such an approach can answer significant questions about the importance of legal sanctions relative to other variables. In this research, a three-variable inhibitory model suggested by Grasmick and Green (1980) was tested using panel data from a large sample of adolescents. Internalized normative constraint was found to be the strongest predictor of subsequent delinquency. However, perceptions of the risk of both formal and informal sanctions add significantly to the model's explanatory power. Interaction effects were noted that suggest sanction threats may have a compensatory effect where internal constraints are weak.     

The difficult issue of age assessment on pedo-pornographic material

The issue of juvenile pornography has seen an increase in the past few years of the number of expert opinions requested to forensic pathologists, paediatricians and other various experts within the forensic and medical fields concerning the age of represented individuals. Regardless of the entity of the problem, no actual method exists which can allow us to give an objective and scientific answer, particularly in the postpubertal stage. Using parameters related to sexual maturation can be very dangerous. Nonetheless some experts still insist with similar types of “expertises”. This study aims at verifying the ability of different experts in assessing age of postpubertal individuals represented in pornographic material. Results underline the difficulties and major uncertainties of age evaluation by visual observation of photographic material particularly when the subjects have reached the sexual maturation stage – and therefore in verifying whether the individual is above or below 18 years of age (an important age limit for most European countries as far as this type of crime is concerned). Furthermore the study stresses the need both to search for an alternate approach and to apply extreme caution in judicial evaluation.     

Reforming Relocation Law: An Evidence‐Based Approach

In recent years, there has been much discussion within international fora about the need for a greater consensus on how to approach relocation cases. Empirical research on the lived experience of parents and children who have been through relocation disputes has an important role to play in providing an evidence base for decisions on policy. In this article, we summarize the findings of a 5‐year prospective longitudinal study of relocation disputes in Australia and make recommendations in the light of this and other research evidence concerning a new approach to relocation law. We argue that there should be no presumptions. Nonetheless there is an appropriate place for legislative or appellate guidance on how to approach these disputes. “Good faith” should be irrelevant to decision making, and children should not be placed in the center of the conflict. The adjudication of relocation disputes should be on the basis of asking three questions: First, how close is the relationship between the nonresident parent and the child and how important is that relationship developmentally to the child? Second, if the relocation is to be permitted, how viable are the proposals for contact with the nonresident parent? Third, if the relationship between the child and the nonresident parent is developmentally important to the child and is likely to be diminished if the move is allowed, then (a) what are the viable alternatives to the parents living a long distance apart? and (b) is a move with the primary caregiver the least detrimental alternative?

Key Points for the Family Court Community
• Describes the findings of empirical research on relocation disputes in Australia on the lived experience of children and families postrelocation disputes.
• Reviews various features of relocation law and proposals for reform in the light of this research evidence.
• Proposes an approach to deciding relocation cases based upon three essential questions.

     

Participatory action research in practice: a case study in addressing domestic violence in nine cultural communities

Participatory action research (PAR) is increasingly recognized as a viable approach to developing relationships with communities and working closely with them to address complex public health problems. In the case of domestic violence research, where ensuring the safety of women participants who are battered is paramount, participatory approaches to research that include advocates and women who are battered in research design, implementation, analysis, and dissemination are critical to successful and mutually beneficial projects. This article presents a case study of a PAR project that conducted formative qualitative research on domestic violence in nine ethnic and sexual minority communities. The article describes the specific ways in which a PAR approach was operationalized and discusses in detail how community participation shaped various stages of the research. Furthermore, specific actions that resulted from the research project are reported.     

Smartphone and Tablet Applications for Crime Scene Investigation: State of the Art,Typology, and Assessment Criteria

The use of applications on mobile devices is gradually becoming a new norm in everyday life, and crime scene investigation is unlikely to escape this reality. The article assesses the current state of research and practices by means of literature reviews, semistructured interviews, and a survey conducted among crime scene investigators from Canada and Switzerland. Attempts at finding a particular strategy to guide the development, usage, and evaluation of applications that can assist crime scene investigation prove to be rather challenging. Therefore, the article proposes a typology for these applications, as well as criteria for evaluating their relevance, reliability, and answer to operational requirements. The study of five applications illustrates the evaluation process. Far away from the revolution announced by some stakeholders, it is required to pursue scientific and pragmatic research to set the theoretical foundations that will allow a significant contribution of applications to crime scene investigation.     

RACIAL–ETHNIC THREAT,OUT‐GROUP INTOLERANCE,AND SUPPORT FOR PUNISHING CRIMINALS: A CROSS‐NATIONAL STUDY*

Scholars often have used the group threat thesis to explain why punitiveness varies across places. This research regularly has found that punitiveness is harsher in places with a larger minority population. Yet researchers only have had a rudimentary grasp of why this is the case. Moreover, most prior research has focused only on the United States, giving us little knowledge of whether the group threat thesis is a viable explanation of cross‐national differences in punitiveness. In the current study, we postulate that the relative size of the out‐group population affects punitiveness indirectly, via its impact on individual intolerance toward ethnic out‐groups. We test this thesis cross‐nationally with data from individuals residing in 27 European countries. Our findings are consistent with the argument that greater racial/ethnic diversity at the country level affects individuals’ attitudes toward minority out‐groups, which in turn increases their support for severely punishing criminal offenders.     

新《民事证据规定》视角下鉴定人制度定位问题研究

鉴定人角色定位是鉴定人制度中的一个基本问题,它决定着鉴定人的制度设计及鉴定人在诉讼中的权利、义务以及责任的承担。从比较法角度看,英美法系国家的专家证人属于证人,具有党派性的特征。大陆法系国家在鉴定人角色定位问题上有不同的观点。通过梳理发现,这些观点可总结为证据方法说、证据调查说和折衷说三种。在我国,经过民事诉讼立法及相关司法解释的相继出台,鉴定人定位问题的脉络越来越清晰。2019年12月,新《民事证据规定》颁布,鉴定人定位的明晰成为理解、适用新《民事证据规定》鉴定人制度的前提。术语上的届分、内容上的区别是制度完善的基础,"双重属性"下其他专家制度的配套适用也是问题解决的路径。     

Law,the State,and the Dialectics of State Crime

Drawing on material from a study of civil society and state crime in six countries, this article reflects on two themes from Chambliss’s work: the debate between state-centred and more pluralistic views of law, and the “dialectical” approach to the analysis of state crime. It argues for a more pluralistic approach to law than Chambliss and Seidman adopted in Law Order and Power, along with a broader approach to the definition of state crime as a form of deviant behaviour. Case studies from the civil society research illustrate how the strategies adopted by organizations challenging state practices can be understood in terms of an interplay between different forms of law. With some qualifications, we support Chambliss’s dialectical approach, and attempt to clarify just what the term “dialectical” means. Finally we bring together the two strands of the argument to propose an approach to state crime founded on “dialectical legal pluralism”.     

论后现代主义思潮对我国经济法学研究的冲击与影响

后现代主义作为西方发达国家的一种泛文化思潮,已给中国经济法学研究带来了理论解释的任意性、研究范式的多元化、研究方法的主观性和权利话语的非中心化诸多负面影响,但是从另一方面来说,后现代主义给我们提供的反思维度和批判精神又是具有积极意义的。辨证地看待后现代主义思潮对经济法的影响,充分认识其负面效应,适当借鉴其批判精神,是经济法学人对待后现代主义思潮的应有态度。     

Addressing identity crime in crime management information systems: Definitions,classification, and empirics

Identity fraud as a term and concept in its formative stages was often presumed to be identity theft and visa versa. However, identity theft is caused by the identities (or tokens) of individuals or organisations being stolen is an enabling precursor to identity fraud. The boundaries of identity fraud and identity theft are now better defined. The absence of specific identity crime legislation could be a cause of perpetrators not classified as breaching identity crimes but under other specific entrenched law such as benefit fraud, or credit card fraud. This metrics overlap can cause bias in crime management information systems. This study uses a multi-method approach where data was collected in both a quantitative and qualitative manner. These approaches are used as a lens for defining different classes of online identity crimes in a crime management (IS) security context. In doing so, we contribute to a deeper understanding of identity crime by specifically examining its hierarchical classes and definitions; to aid clearer structure in crime management IS. We seek to answer the questions: should current law around identity fraud continue to be reinforced and measures introduced to prevent identity crime; should laws be amended; or should new identity crime laws be constructed? We conclude and recommend a solution incorporating elements of all three.     

Dynamics,Experimental Economics,and Entrepreneurship

Economic experiments are introduced and proposed as the methodology of choice for a subset of research questions in technological entrepreneurship, an approach that has not yet been used in this field. Moreover, we provide an entrepreneurship-specific framework that matches types of research questions and feasible empirical methods. For example, a very dynamic environment is seen as a threat to most field studies, whereas the need to have entrepreneurs or other practitioners as subjects is almost a criterion for preclusion in economic experiments. The design of a recent economic experiment dealing with the timing of exploitation of an R&D based opportunity is explained and analyzed. We finally discuss the applicability of economic experiments to entrepreneurship questions in technology transfer.     

Determinants of knowledge transfer: evidence from Canadian university researchers in natural sciences and engineering

This paper addresses three questions: First, what is the extent of research transfer in natural sciences and engineering among Canadian university researchers? Second, are there differences between various disciplines with regard to the extent of this transfer? And third, what are the determinants of research transfer? To answer these questions, the paper begins by differentiating between technology transfer and knowledge transfer. It then identifies the individual researcher as the unit of analysis of this study and introduces a conceptual framework derived from the resource-based approach of firms. The paper then reviews the literature on each of the factors included in the conceptual framework, beginning with the dependent variable, knowledge transfer. The conceptual framework includes four categories of resources and one category of research attributes that are likely to influence knowledge transfer. Based on a survey of 1,554 researchers funded by the Natural Sciences and Engineering Research Council of Canada (NSERC), comparisons of means of research transfer across research fields were conducted. Multivariate regression analyses were used to identify the determinants of research transfer by research field. The results of these analyses indicate that researchers transferred knowledge much more actively when no commercialization was involved than when there was commercialization of protected intellectual property. This paper thus adds to the relatively scarce evidence about knowledge transfer by examining knowledge transfer from a broader perspective than strict commercialization. The findings of this paper are also interesting for other reasons. We obtained statistical evidence indicating that researchers in certain research fields were much more active in knowledge transfer than those in other fields, thereby pointing to differences in levels of knowledge activities across research fields. Furthermore, we obtained evidence showing that only two determinants explained knowledge transfer in all the six research fields considered in this study, namely, focus of research projects on users’ needs, and linkages between researchers and research users. Statistical evidence obtained indicates that the other determinants that influence knowledge transfer vary from one research field to another, thus suggesting that different policies would be required to increase knowledge transfer in different research fields. The last part of the paper outlines the implications of the regression results for theory building, public policy and future research.     

Ethical issues in international biomedical research: an overview

Human subjects research has been the focus of numerous controversies over the years. The dilemma lies between the potential harm to individuals who participate in research and the knowledge to be gained from the research study that might benefit society. When research is conducted in developing countries by researchers and sponsors from the United States and other industrialized countries, differences in history, culture, politics, wealth, and power between the countries give rise to unique challenges. In this Article, the author identifies several ethical issues to be considered when research is conducted in developing countries and provides the legal and ethical framework for their resolution.