论量刑事实的证明标准

《刑事诉讼法》、《最高人民法院关于适用〈中华人民共和国刑事诉讼法〉的解释》和《关于办理死刑案件审查判断证据若干问题的规定》对量刑事实的证明标准的规定与学术观点之间存在一定分歧.为了防止立法技术上的因素使被告人陷于不利境地以及在界定定罪事实与量刑事实上的无休止争论,罪重事实应当适用与定罪事实相同的证明标准.量刑事实的举证责任分配以及控辩双方的举证能力差异决定着罪轻事实的证明标准应当低于定罪事实的证明标准.其中,从轻处罚的事实可以适用优势证据标准;减轻处罚的事实和免除处罚的事实应当适用明晰可信标准.     

CUMULATIVE DISADVANTAGE: EXAMINING RACIAL AND ETHNIC DISPARITY IN PROSECUTION AND SENTENCING

Current research on criminal case processing typically examines a single decision‐making point, so drawing reliable conclusions about the impact that factors such as defendants’ race or ethnicity exert across successive stages of the justice system is difficult. Using data from the New York County District Attorney's Office that tracks 185,275 diverse criminal cases, this study assesses racial and ethnic disparity for multiple discretionary points of prosecution and sentencing. Findings from multivariate logistic regression analyses demonstrate that the effects of race and ethnicity vary by discretionary point and offense category. Black and Latino defendants were more likely than White defendants to be detained, to receive a custodial plea offer, and to be incarcerated—and they received especially punitive outcomes for person offenses—but were more likely to benefit from case dismissals. The findings for Asian defendants were less consistent but suggest they were the least likely to be detained, to receive custodial offers, and to be incarcerated. These findings are discussed in the context of contemporary theoretical perspectives on racial bias and cumulative disadvantage in the justice system.     

关于一人公司规制完善的若干建议

新《公司法》确立了“一人公司”制度,但一人公司在运行过程中存在一些问题。应通过立法对其在法律上加以有效地规制,加强对一人公司内部活动的监督和限制,对一人公司注册资本制定更加严格的保障措施,建立一人公司的信用体系,最终达到促进公司管理和市场运作规范化建设的目的。     

弱势群体犯罪问题研究

弱势群体是一个未在学术界形成统一认识的概念,它具有相对性,是在一定标准下,对某些或某类权利缺失或相对较弱人群的概括性称谓,有时也称为“脆弱群体”。法学界基于人权、法理的思考,对弱势群体及其保护多有研究,然而鲜有论及弱势群体犯罪及防治的问题。作为一种社会治理、社会控制方式,法律在对弱势群体给予保护与关注的同时,应当对其进行有效规范,遏制弱势群体犯罪,尤其是在当今弱势群体犯罪问题已成为影响社会稳定和经济发展的严重隐患时期,这一点更为重要。     

Modifying children's court care plans to acknowledge poverty and disadvantage

This think piece suggests that Children's Court Care Plans should include a new section that documents poverty and social disadvantage, especially of Aboriginal and Torres Strait Islander families, when they are under investigation for child abuse and neglect. New South Wales in Australia is used as the exemplar state, but this suggestion may find an echo elsewhere.

Points for practitioners

• As a general proposition social and economic circumstances should be considered in addition to parental dysfunction in child protection proceedings in Children's court.
• Care Plans prepared for hearings in the NSW Children's Court, often developed in response to serious harm report investigations, currently do not contain information about parents' poverty and social disadvantage and hence decontextualise family living circumstances.
• Consistent with international evidence, Care Plans should require information about parents' socioeconomic situation, including social disadvantage of residential neighbourhood, status and cost of household tenancy, and household income.
• Taking account of social and economic circumstances has the potential to generate savings in out-of-home care that can be re-allocated to support services to reduce poverty and social disadvantage and thereby reduce the need for removal of children from parental care.