中德(日)量刑基准之比较研究

在德日刑法中,受责任主义的规制,责任为刑罚规定了前提和界限,基于预防方面的考量不能僭越责任程度所决定的刑罚。相比之下,中国现行刑法的量刑基准理论与之虽貌合实神离,因为作为其量刑基准的刑事责任的大小是社会危害性与人身危险性评价的加权之值。我国现行量刑基准理论实际上是现行刑事责任理论体系的逻辑延伸。欲求我国量刑基准理论在逻辑上更为科学合理,在价值取向上彰显现代刑法之人权保障机能,则必以改善现行刑事责任理论体系为前提。改造的重点在于纠正将责任评价与刑罚量定混为一体的做法,将之予以分离,使之各得其所。作为犯罪后果负担的刑事责任只能由犯罪的严重性程度来决定,人身危险性因素不能用于评价犯罪与刑事责任,而只能在刑罚最后量定时做有利于犯罪人更新改造之缓和考量。     

改刊重要启事

《重庆社会主义学院学报》是中共重庆市委统战部主管、重庆社会主义学院主办的以反映统一战线理论研究成果为主的综合性社会科学学术期刊,是《全国报刊索引》核心期刊,面向国内外公开发行,从2009年起     

Consensus or compulsion?

When a person receives the same message often enough, from intelligentpeople whose opinions are not only valued but are handsomelypaid for, he is apt to believe it. Yet, acceptance within thecanon of generally accepted wisdom does not of itself qualifya widely held belief as being true. In the field of IP as elsewhere, opinions are often accepteduncritically on the trusting assumption that     

Adaptation,conflict and cooperation in pastoralist East Africa: a case study from South Turkana,Kenya

The control and management of resources is an implicit focus of many recent studies that trace the role of environmental factors in the onset and duration of conflict. According to the resources scarcity approach, as scarcities of natural resources worsen they become unmanageable leading to violent conflict between groups competing to use the same resource(s). However, the resources scarcity perspective is misleading by de-emphasising the socio-economic and political factors that are crucial to understanding contested uses and control of resources. This paper introduces the concept of adaptation as an entry point into debates surrounding the role of resources in conflict. The notion that resource uses are socially embedded and politically contingent underlines a key argument in the paper that adaptation is a contentious process and is tightly linked to resource struggles that are laden with material and symbolic importance. It is argued that social relations and political forces shape different vulnerabilities, enlarging options for some to adjust to environmental changes while potentially limiting options for others. A case study of conflict and cooperation among interacting groups of livestock herders in Turkana, Kenya lends contextual support to these views.     

Treatment, diagnosis--or just testing the water?

The Gowers Review of IP was published in early December. Nowthat its contents have been revealed, the IP community in Britainand elsewhere is coming to terms with its contents. Althoughthe Review proposes relatively few changes to the IP systemas we know it, many are wary of its potential impact. One reason for the wariness lies in the approach taken by theReview. The most natural avenue for investigation is that whichtackles IP rights in turn: patents,     

Redrawing the Boundaries of Self-Defence

Suzanne Uniacke, Permissible Killing: The Self-Defence Justification for Homicide , Cambridge: Cambridge University Press, 1994, ix + 244 pp, hb £35.00.