跨境证券犯罪刑事管辖及法律适用探讨

境内与境外的证券市场适用不同的法律监管体制,跨境证券犯罪的跨境特征可能使境内境外对相关证券犯罪均具有刑事管辖权,从而引发刑事管辖冲突。对于跨境证券交易的监管和法律适用,无论是在法律规定层面还是在司法实践层面,均应遵循“主场原则”。应明确监管职能上的分工以避免适用不同法律法规的混乱情况,应体现最大的监管效能并减少区际法律冲突。跨境证券犯罪的刑事管辖权归属应充分尊重行政监管原则和考虑前置性法律的适用,并与行政管辖权归属保持一致。跨境证券犯罪的刑事管辖权归属应考虑犯罪行为社会危害的主要发生地。以内幕交易为代表的跨境证券犯罪的主要行为是“交易”,根据区际刑事管辖冲突的解决规则,应由交易行为的发生地管辖,按照交易地的刑法对相关行为进行刑事评价。     

Black Mist and White Collars: Economic Crime in the United States and Japan

Comparative studies of crime have persistently challenged and daunted criminology scholars. For criminologists studying Japan, interest has traditionally been focused on the country’s much-heralded low crime rate. The current study examines white-collar lawbreaking in both the United States and Japan, focusing on similarities and differences in culture, law, criminal justice system response, corporate governance, and regulation. The study concludes that if Japan’s low crime rate is an enigma to criminologists, then its ample amounts of white-collar and corporate crime appear that much more puzzling. Given that the depth of the problem of white-collar crime goes far beyond adjudicated cases, Japan’s remarkably low rate of common crime is likely eclipsed by its rate of white-collar and corporate crime. The study concludes that the different legal and cultural contexts of the “law in inaction” go far in explaining the official nonrecognition of white-collar and corporate crime in both the United States and Japan.

Overview of: “Crime Place and Pollution: Expanding Crime Reduction Options Through a Regulatory Approach”

Research Summary Crime reduction policy has focused almost exclusively on offenders. Recent studies and evaluations show that expanding our policy portfolio to include places may be highly productive. We show that there is considerable research showing that crime is concentrated at a relatively few locations, that high-crime places are stable, that changing places can reduce crime, that displacement is not only far from inevitable but also less likely than the diffusion of crime prevention benefits, and that owners of high-crime places can be held accountable for the criminogenic conditions of their locations. We link these findings to environmental policy, where environmental scientists, economists, and regulators have developed a broad set of regulatory options. The core of this article describes a portfolio of environmental policy instruments directly applicable to crime places. We also discuss major decisions local governments will need to make to implement various forms of regulation, and we list challenges that governments must anticipate in planning for such implementation. We argue that a regulatory approach to crime places has the potential to lower the cost to taxpayers of reducing crime by shifting costs from governments to the relatively few place owners whose actions create crime-facilitating conditions. Policy Implications Taking a regulatory approach to crime places substantially expands the crime policy options under consideration. Regulatory options may increase local governments’ effectiveness at reducing crime while reducing governments’ costs. This is because regulatory approaches have the potential to shift some portion of the financial burden for crime fighting to owners of criminogenic locations. Policy makers can select between means-based anticrime regulations that focus on how place owners manage their locations and ends-based regulations that focus on the number of crimes allowed at places. Both of these approaches contain several alternative regulatory instruments, each with its own set of advantages and disadvantages. Experimenting with various regulatory instruments could lead to the development of a range of new crime reduction policies. In addition, a regulatory approach has implications for the funding of policy research. Means-based regulatory instruments require governments to develop evidence that the means they regulate have the desired impact on crime. Ends-based regulatory instruments shift this burden to the regulated places.     

Crime and Punishment in Norwegian Mid-adolescents: A Normal Population Study

Does the 'penal eye' of our society most easily catch sight of those with scant resources and lower-class backgrounds? In a national representative sample of Norwegian adolescents, we investigated the selection process to the penal system. Of the adolescents studied, 2.8% had received a penal sanction during the last year, 3.7% of the boys and 1.9% of the girls. The sanctions varied in seriousness, from a ticket fine to a prison sentence. These adolescents had much higher crime participation than other adolescents. In particular, substance-related offences were of importance. They had a high frequency of alcohol intoxication, and they often had a previous history of police contacts. No links were found to parental social class, but there was an association with parental history of unemployment. Furthermore, numerous other parental risk factors were found, such as marital breakup, low level of care, lack of monitoring and frequent alcohol intoxication. However, these factors were also associated with the development of crime. Were such extra-legal factors predictors of penal sanctions, when crime, alcohol intoxication and a previous history of police contacts were controlled for? Poor parental monitoring was the only (marginally) significant predictor. On the other hand, criminal behaviour had a highly significant effect, as early as at the lowest level of participation, and this effect increased steeply at higher levels. Alcohol had an effect, but only when the adolescents reported a rather high number of intoxication episodes. Thus, a problematic family background and small resources obviously play a role in the development of crime, but are less important as direct factors of being caught by the police and punished by the penal system. However, the subjects in our sample were still in their midteens and it might well be that development in late adolescence and young adulthood takes a different course.     

Crime News Trends in Finland: A Review of Recent Research

In this article, we present findings of crime media research conducted in Finland during recent years. As this body of research has mainly been published in Finnish, the core results have not been available for international audiences until now. The amount of crime news reporting has consistently increased both in the newspapers and in television news broadcasts during the last decades. A series of representative surveys also show that the majority of people read and view crime news on a regular basis and are thus constantly exposed to these media messages. We conclude our article by contrasting crime news trends with the development of fear of crime in Finland, and by discussing possible links and explanations to the relationship.     

Difficulties in the criminal prosecution of insider trading—A clinical study of the Bekaert case

If the enforcement of insider trading prohibition is of crucial importance to ensure the integrity of financial markets, then the current criminal prosecution in Europe fails in reaching this goal. This article illustrates several difficulties in prohibiting and prosecuting insider trading by using a clinical study of the Belgian industrial company Bekaert, NV. It is shown that courts currently seem to lack knowledge of the functioning of financial markets to assess an insider trading case. Therefore their decisions give little guidance to future litigants. Using, a law and economics framework, this clinical study is clarifying in several aspects compared to a traditional legal analysis. The analysis focuses on two aspects of an insider trading case. First, the price-sensitive character of the information is examined. Second, the standard of proof is examined. JEL classification G14 · K22 · K42     

The case of the missing victims: Gunshot woundings in the National Crime Survey

National Crime Survey (NCS) data yield an estimate that 171,000 Americans were nonfatally shot in criminal assaults, robberies, and rapes for the period 1973–1979. Comparing this estimate with the number of firearms homicides during this period suggests either that the death rate in gunshot cases is very high (over 1/3) or that the NCS estimate is low. Based on police-generated data appropriate to estimating the true death rate from gunshot wounds, it appears that the NCS estimate is low by a factor of about 3.0 compared with the number of criminal gunshot woundings known to the police. It is common knowledge that survey-based estimates of assault rates tend to be relatively unreliable, a fact that has been attributed to problems with respondents being willing and able to recall threats, fist fights, and other minor assaults. The current result indicates that the estimation problem is not limited to minor assaults. There is reason to think that the underestimate of gunshot woundings is the result of problems with the NCS sample as well as problems with respondent cooperation.     

Understanding Victim Support as Crime Prevention Work: The Construction of Young Victims and Villains in the Dominant Crime Victim Discourse in Sweden

Starting from the observation that a new victim category has emerged in the form of the ‘young crime victim’, this article explores the notion of support to young crime victims as crime prevention work, considering it as an important constituent of the dominant crime victim discourse among support professionals. In the context of the support work, the (young) ‘victim’ and the (young) ‘villain’ provide mutually necessary counterparts constructed in relation to each other. Corresponding to this division, two approaches in criminal and crime prevention policy and practice are then analysed using Garland's notions of ‘the criminology of the self’ and ‘the criminology of the other’. The first of these strategies is generally associated with rehabilitative measures (with the resulting normalization of the crime, its victims, and villains), while in the second punitive measures remain the norm (with the crime, its victims, and villains becoming ‘Otherized’). Yet, as shown within the context of rehabilitation organized as support to young crime victims, both of these (at first glance mutually contradictory) discourses are drawn upon and operationalized by the professional support staff constructing images of young victims and villains in their daily work. Help-seeking youths resistant to identifying as victims remain represented as (possible future) villains.     

行为四分法之初探——兼反思我国犯罪构成模式

我国刑法理论中危害行为和实行行为概念中存在着问题,从司法实践的犯罪评价过程着手,刑法中应有四个居于犯罪论体系不同位置,具有不同属性的行为,并对其性质进行了分析,理清了它们之间的关系,同时也从行为视角反思了我国犯罪构成体系形成的原因及存在的问题。     

The Relationship Between Crime Reporting and Police: Implications for the Use of Uniform Crime Reports

Empirical studies that use reported crime data to evaluate policies for reducing crime will understate the true effectiveness of these policies if crime reporting/recording behavior is also affected by the policies. For instance, when the size of the police force increases, changes in the perceived likelihood that a crime will be solved may lead a higher fraction of victimizations to be reported to the police. In this paper, three data sets are employed to measure the magnitude of this reporting bias. While each of these analyses is subject to individual criticisms, all of the approaches yield similar estimates. Reporting bias appears to be present but relatively small in magnitude: each additional officer is associated with an increase of roughly five Index crimes that previously would have gone unreported. Taking reporting bias into account makes the hiring of additional police substantially more attractive from a cost–benefit perspective but cannot explain the frequent inability of past studies to uncover a systematic negative relationship between the size of the police force and crime rates.     

Examining the Externalities of Welfare Reform: TANF and Crime

This study explores the relationship between welfare policy variation in the United States following the introduction of Temporary Assistance for Needy Families (TANF) and its relationship with various types of crime. While early studies of the effects of welfare assistance on crime consistently found a negative association, more recent examinations have complicated these findings. Nearly all prior research focuses on Aid for Families with Dependent Children or early years of TANF. Examining a longer time-series and using propensity score weighting to model the tendencies of states to select into more stringent welfare regimes, we find a strong association between states with greater levels of welfare restrictiveness and higher rates of violent crime. There is mixed evidence that this relationship also exists with property crimes.     

Affairs of the Heart: Hate Crime and the Politics of Crime Control

Various scholars have noted the priority given to law in the politics of hate violence; violence is the problem and law, more specifically the criminal law, the solution at the ‘heart’ of society. This article seeks to explore some of the gaps and silences in the existing literature and politics that mobilize these ideas and associations. It is the gap sand silences associated with demands for and expectations of criminal justice that will be the particular concern of this article. The demand for law is examined by way of David Garland's recent work on the culture of crime control. His work offers an analysis of the contemporary place of crime control in Anglo-American liberal democracies. A distinctive feature of his analysis is to be found in the way it maps an important paradox of contemporary crime control; its political centrality and an increasing recognition of its limitations. Garland's ‘criminology of the self’ and the ‘criminology of the other’ raise some important challenges for those who advocate resort to crime control. My particular concern is to consider the significance of Garland's work for a contemporary sexual politics that puts violence and criminal justice at the heart of that politics. Feminist, gay and lesbian scholarship first on criminal justice and second, on violence and law will be used to develop a critical dialogue with Garland's analysis and to reflect upon the challenges raised by his insights into contemporary crime control. This revised version was published online in July 2006 with corrections to the Cover Date.     

Neighborhood immigrant concentration and violent crime reporting to the police: A multilevel analysis of data from the National Crime Victimization Survey*

Using data from the Area‐Identified National Crime Victimization Survey (NCVS), we provide a national assessment of the impact of neighborhood immigrant concentration on whether violence is reported to the police. By drawing on multiple theoretical perspectives, we outline how the level of violence reporting could be higher or lower in immigrant neighborhoods, as well as how this may depend on individual race/ethnicity and the history of immigration in the county in which immigrant neighborhoods are located. Controlling for both individual‐ and neighborhood‐level conditions, our findings indicate that within traditional immigrant counties, rates of violence reporting in immigrant neighborhoods are similar to those observed elsewhere. In contrast, within newer immigrant destinations, we observe much lower rates of violence reporting in neighborhoods with a large concentration of immigrants. Our study findings reveal comparable patterns for Whites, Blacks, and Latinos. The results have important implications for theory, policy, and future research.     

Crime is Part of the Problem: Contexts of Lethal Violence in Finland and the USA

According to Zimring & Hawkins, the exceptionally high level of homicide in the USA is unrelated to the nation's overall crime problem. In contrast to this statement, a critical review of their evidence suggests that criminal activity may explain a significant share of the excess levels of lethal violence in the USA. As a first step towards testing this hypothesis, we have created a uniform victim-level data file of information on the method and the situational context of homicide cases in Finland and the USA. In support of the hypothesis, we find that homicides that occur in the context of another crime are much more prevalent in the USA than in Finland. This difference accounts for 35% of the overall gap in the homicide rate between these two nations. Moreover, our research indicates that the effect of the criminal context cannot be reduced to the 'instrument effect', i.e. the fact that handguns are much more prevalent in the USA. In light of these findings, it would be premature, in terms both of theory and of public policy, to treat lethal violence as a problem entirely independent of other crime.     

Private Military Contractors,Crime, and the Terrain of Unaccountability

Criminological research has traditionally attempted to explain the etiological factors of crime and then suggest appropriate controls. More often than not, the foci of this kind of work have remained on “street crime.” Since the 1990s, however, some scholars have turned their attention to the causal factors of corporate crime, state crime, crimes of globalization, supranational crimes, and their various permutations and interconnections. Clearly missing from this literature is the growing phenomenon of private military contractors (PMCs) and the crimogenic culture of and atmosphere within which they operate. Specifically, while the use of PMCs is rapidly growing, the increasing propensity for PMC's crimogenic culture and the unregulated nature of what has become a global industry is rarely studied by social scientists. Further, few criminologists have examined this area of research by applying criminological theory to explain the growth and emergence of PMCs. Our goal is to help fill this gap. Through the process of theory building and refinement we identify factors that facilitate the criminogenic environment within which PMCs operate. Additionally, without attempting to expand explanatory and causal mechanisms, policies aimed at reducing PMC criminality and social justice for their victims cannot be developed. As such, we draw from theoretical developments in state and state‐corporate crime, social disorganization, and anomie literature to shed light on key factors associated with PMCs, namely, the crimogenic atmosphere within which they operate.     

论青少年集团犯罪成因及解决途径

针对当今世界青少年犯罪中的集团化趋势,分析了青少年集团犯罪的社会成因,探索了其社会、教育及法律方面的解决途径,并提出在法律上通过时间上的限制、空间上的分离以及缓刑制度的开展来解决这一问题的一些建议。     

Violent Crime in the Urban Community: A Comparison of Stockholm and Basel

In this article the authors present some preliminary findings from a comparative study of police recorded violent crimes in Stockholm and Basel. They present the first results from a comparative analysis of the situational context, the ecology of crime, and of offender residences in these cities. There is impressive evidence of basic similarities in the situational context of violent crime and the residential distribution of violent offenders. Yet there are also significant differences, some of which may have interesting implications for crime prevention. Firstly, violent crime seems to be more highly concentrated during weekend nights in Stockholm than in Basel. Secondly, they find evidence that the presence of weapons in a community increases the risk of more serious outcomes of violent events. Efforts to reduce the availability of weapons may thus have significant effects on the outcomes of violence, but not necessarily on its frequency. Thirdly, they show that offenders in both cities are highly concentrated in socially disorganised communities with few economic and social resources.     

规范的犯罪成立要件、刑法免责与我国犯罪构成理论

一国的犯罪构成理论应当与该国刑法规范的犯罪成立要件形成动态的符合关系。无论维持、改良还是重构我国犯罪构成理论,规范的犯罪成立要件都是一个不能回避的视域。比较我国与德国、瑞典、芬兰刑法规范犯罪成立要件,具体免责事由的缺失是我国刑法规范的犯罪成立要件最大的不足。完善我国犯罪构成理论,应当从发展我国刑法免责理论、完善刑法免责立法开始。