Free Speech,Crime, and the Challenge of Advancing Technology

Speech technology has developed rapidly and has taken many different forms. One form of this technology, the internet, poses a difficult challenge for society because of the way that it provides children with easy access to various forms of 'indecent' material. US courts have struggled with the problem of how to reconcile the internet, and other more advanced technologies, with traditional First Amendment free speech doctrine. For many years, US courts distinguished between so-called 'traditional forms' of technology, and other forms of technology, in particular broadcast technology. While the courts have always provided strong protections for traditional forms of technology, they have provided less protection to broadcast technology. Importantly, the internet challenges the dichotomy between 'traditional' technology and broadcast technology, and has forced the US Supreme Court to reconsider its precedents relating to technology. This reconsideration has made it more difficult to regulate the internet for the 'health, welfare and morals' of society. This paper analyses the scope of government authority in light of recent precedent.     

Crime Data,the Internet,and Free Speech: An Evolving Legal Consciousness

Digitization and open access to governmental data have made criminal justice information incredibly easy to access and disseminate. This study asks how law should govern access to criminal histories on the Internet. Drawing upon interviews with crime website publishers and subjects who have appeared on websites, I use legal consciousness theory to show how social actors interpret, construct, and invoke law in a nascent and unregulated area. The analysis reveals how both parties construct legality in the absence of positive legal restrictions: Website publishers use legal justifications, while those appealing to have their online record cleared resort to personal pleas, as opposed to legal remedy. Ultimately, I show how current data practices reinforce structural inequalities already present in criminal justice institutions in a profoundly public manner, leaving website subjects with little recourse and an inescapable digital trail.     

Deadly Words: State Power and the Entanglement of Speech and Violence in Hate Crime

Any analysis of hate crime that attempts to separate speech from action, language from violence, faces epistemological difficulties that limit the range of conversations about laws responding to identity-based injury in the United States. Active debates have raged over the implications of bias crime sentence enhancement laws for the protection of ‘freespeech’, thus addressing the inextricability of language and meaning from hate crime. Those in favor of legal responses to identity-based injury tend toward essentialist claims which assume the stability of identity and of meanings inherent in words or actions. Those opposed assert the impossibility of codifying the meaning of words or actions in the law, and/or they worry about the reification of (victimized) identities accompanying bias crime statutes. This article argues that the focus on language and speech in these debates simultaneously enables an evasion of discussion about the law's response to bias-related violence, and misleadingly assumes too much stability in the functions of law and the nature of state power. Interviews conducted by the author with individuals involved in a 1992 racist hate crime are used to show the diverse elements of state power suffusing the incident and its aftermath. An analysis of the crime's investigation and prosecution under a Maryland hate crime statute suggests that law enforcement officers are primarily using hate crime laws as public relations tools in a fight against community perceptions that they are themselves bigots. This revised version was published online in July 2006 with corrections to the Cover Date.     

国际犯罪与涉外犯罪、跨国犯罪关系辨析——以基础概念解析为进路

国际犯罪与涉外犯罪、跨国犯罪之间虽然在起源上具有不可磨灭的历史渊源,但它们在内容上并不具有同一或者包容关系,而是一种即相互交叉又彼此保持一定独立性的关系。只有当涉外犯罪、跨国犯罪具有"国际性"时,即它们的危害性达到国际刑法所要求的严重程度时,才能上升为国际犯罪。而在国际犯罪中,除了具有国际性的涉外犯罪和跨国犯罪外,还包括具有国际性的既不属于涉外犯罪又不属于跨国犯罪的单纯的国内犯罪。     

Crime and Reactions to Crime in Scandinavia

This short overview of available statistical data on crime and penal systems in Scandinavia indicates that the level of traditional forms of crime in Scandinavia is on a par with or lower than that found in many other European countries. As elsewhere in western Europe, Scandinavia experienced a substantial increase in crime rates during the post‐war period—indicating that these recorded increases may have common structural roots. The 1990s witnessed a stabilization of theft rates, albeit at a high level. Increasing equality between women and men may have contributed to an increase in the reporting of violent and sexual offences against women (and children), making these offences more visible. The system of formal control in the Scandinavian countries is characterized by relatively low police density; a clear‐up rate that has declined; above‐average conviction rates; the imposition of fines in a high proportion of criminal cases; and relatively low prison populations. The implications for crime policies are discussed.     

行政犯与二元化犯罪模式

刑事犯与行政犯的类型划分已成为犯罪分类中的一个固定范武,如何在认知行政犯之本质的基础上设置行政犯的犯罪模式,这就不仅关系到刑法的控制效果,而且还关系到刑法的科学发展.作为"先抑后扬"的二元化犯罪模式,不仅能够满足刑法上设置行政犯之目的诉求,而且较好地体现了刑法谦抑原则,因而是行政犯之犯罪模式的理性选择.所以未来的刑法修正案应适当扩展二元化犯罪模式的存在范围,具体可以考虑在纯正的贪利性行政犯中实行.     

Crime Reporting Decisions and the Costs of Crime

The paper develops a model of crime reporting based on an economic approach. It identifies the principal costs and benefits of reporting from the victim’s perspective, taking account of insurance provision and the risk of intimidation by an offender. It shows how a victim might use backward induction to infer a rational reporting strategy. The recording of crime by the police is a process that relies on victim reports, and is thus influenced by the reporting decisions made by victims. The paper uses empirical evidence from the British Crime Survey and from the International Crime Victims Survey to explore the hypotheses generated by the model. It finds support for the suggestion that the propensity to report a crime increases with the size of the loss entailed. The paper also explores the implications of the findings for the estimation of the costs of crime. Reporting and intimidation costs are generally excluded from bottom-up estimates of costs, an omission that may be quite serious in the context of offences such as domestic violence.     

Discrepancies Between Crime Reports and Crime Surveys:

The absence of strong zero-order associations between victimization and official crime rates for cities has been a puzzle for social scientists since the data for making such comparisons became available. Using the 26 large central cities for which data on both types of rates are available, we analyze the extent to which discrepancies between the rates can be accounted for by aspects of urban social structure that differ from city to city. After introducing such structural controls, we find a much closer correspondence between the two types of rates for motor vehicle theft, robbery, burglary, and forcible rape, but not for aggravated assault and larceny-theft. These results are explained by citing evidence that we have identified some critical "suppressor" variables for the former crimes (i.e., variables that are positively associated with one type of rate and negatively associated with the other). By contrast, the heterogeneous nature of the phenomena subsumed by the latter two crime categories may preclude identification of a similarly parsimonious list of suppressors. One implication of these conclusions is that cross-sectional analyses of intercity variation in official rates may produce results that are in reasonably close correspondence with what would be obtained with victimization rates for certain index crimes, provided that sufficient structural control variables are utilized.     

在校大学生犯罪的原因与预防

近年来,大学生犯罪率呈上升趋势。纠其原因,和大学生的生理特点、心理特点以及大学生所处的社会环境有着密切的关系。鉴于大学生犯罪原因的复杂性,对大学生犯罪应实施预防的系统工程。在这一系统工程中,包括预测系统、预防系统与控制系统。具体的措施为:从心理咨询工作的开展到校园文化的净化,从关注高校管理体制到增强大学生的法制教育,从深化高校的全面改革到治理高校的周边环境。     

论单位犯罪是共同犯罪

承认单位犯罪是共同犯罪,在理论上和实践中都有其必要性,使对单位犯罪的直接负责的主管人员和直接责任人员追究刑事责任有明确的法律依据,而且在理论上也符合单位犯罪的本质和共同犯罪的成立条件。     

论“因侵权而犯罪”与“因犯罪而侵权”

刑事侵权具备"刑事责任"、"侵权责任"双重责任属性,由于刑、民责任在发展进程、互动的路径及效果上的不同,可分化为"因侵权而犯罪"与"因犯罪而侵权",即刑事侵权二分论。"因侵权而犯罪"具有民事责任倾向性,"因犯罪而侵权"具有刑事责任倾向性,解决刑事侵权责任问题须兼顾侵权责任法与刑事法的正义要求。刑民二分论有坚实的法律基础,符合法律价值基础的要求,当刑事责任与侵权责任进行内容接轨与功能互补时,可在实践中实现预期的价值目标和社会效益的最大化。     

应然犯罪之构成与法定犯罪之构成——兼论犯罪构成理论风格的多元发展

三要件论最重要的出发点是落实罪行法定原则 ,意在构建法定犯罪之构成 ;最重要的体系特征在于把罪状当作整体来把握 ,由此决定了它依托法律形式进行注释的、顺应司法认定思路的、局限于法定犯罪之犯罪构成的理论风格 ;四要件论是意在构建应然犯罪之构成 ,由此决定它从存在的犯罪现象出发 ,依托犯罪行为结构来揭示、把握犯罪法律因素的应然犯罪之犯罪构成的理论风格。从不同角度阐述犯罪构成 ,不仅可以并行不悖 ,而且还能相得益彰。我们既需要应然犯罪之犯罪构成论 ,也需要法定犯罪之犯罪构成论。现在的问题主要不在于如何把“四要件”论发展到完美无缺的程度 ,也不在于如何选择一个理论体系、抛弃另一个理论体系 ,而应在明确理论倾向、风格、功能的基础上 ,寻求犯罪构成理论风格的多元发展。     

Criminalising Hate Crime and Hate Speech at EU Level: Extending the List of Eurocrimes Under Article 83(1) TFEU

Criminal Law Forum - In September 2020, President von der Leyen announced the Commission’s intention to propose to extend the list of EU crimes or Eurocrimes to all forms of hate crime and...     

略论贪污罪与近似职务犯罪的界限

在我国刑法中,有些犯罪的构成特征十分相似,但罪质明显不同.区分近似犯罪构成的一般原则与方法是什么?本文通过剖析贪污罪与为亲友非法牟利罪,国有公司、企业人员(徇私舞弊)滥用职权罪和私分国有资产罪的罪质区别所在.着重从法理层面对构成特征近似犯罪的司法认定问题作了初步探讨.