析教唆犯与间接正犯之间认识错误的认定与处理——以部分的主客观相统一原则为立场

对于教唆犯与间接正犯之间认识错误,中外学说和实务上皆形成观点聚讼。我们主张应以部分的主客观相统一原则为立场解决这个问题。这说明任何细小问题的解决,其实均离不开特定的价值立场。刑法学研究应自觉地穿行于问题与主义之间。     

对我国有罪不起诉制度的反思

我国有罪不起诉制度在理论上认识不一致,执法实践中容易出现混乱,亟需对之进行深刻反思,找出不足,通过建立科学的有罪不起诉制度、健全相关刑法制度,使这一制度进一步得到充实和完善,切实发挥它应有的积极作用。     

认罪认罚从宽制度实施风险及程序控制——基于美国辩诉交易制度实施风险的展开

我国认罪认罚从宽制度吸纳了我国试点的成熟经验和借鉴了美国辩诉交易等认罪协商制度的有益做法。而作为程序上先行先试的制度,在实施中既需要通过程序来避免无辜者被迫认罪和权权交易、权钱交易等,更要防控美国辩诉交易等协商性刑事司法折损正当程序衍生出的量刑失衡以及冤案的风险。认罪认罚从宽制度的程序完善需要针对制度实施极易产生风险的节点予以程序上特别控制,也需要完善相应风险控制的程序机制和救济制度,避免因程序简化可能带来的实体不公,保障我国这一制度的预期目标得以实现。     

The emotional motivation of righteous behavior

A distinction is made between two types of prosocial behavior: personal-helping and righteous behavior. Past studies suggest that sympathy may motivate personal helping but not righteous behavior. The latter may be better predicted by feelings of moral outrage and existential guilt. An experiment was designed to motivate a piece of righteous behavior, the writing of a political letter to stop the testing of nuclear weapons. A series of premeasures ascertained strength of attitude, sense of efficacy, acceptance of responsibility, and prior antinuclear behavior. Subjects who supported a nuclear freeze were exposed to material advocating a nuclear test ban, a video of a congressional aide who argued for the efficacy of writing letters to congressional representatives, and emotionally arousing material on the bombing of Hiroshima. After answering a questionnaire that included items to measure emotional state, subjects were individually given the opportunity to write a letter as they were waiting to be interviewed. Social pressure was deliberately minimized. Extent of moral outrage predicted both previous behavior and letter-writing behavior during the experiment. It combined with previous behavior and sense of efficacy to predict 56% of the variance in experimental behavior: Neither sympathy nor existential guilt were significantly related to this righteous behavior.     

Blame attribution and guilt feelings in violent offenders

Offenders with high psychopathic traits and/or antisocial personality disorder (ASPD) are hypothesised to experience less guilt and less responsibility for their actions than offenders without these problems. These hypotheses were tested and partly substantiated. The study investigates blame attributions and guilt feeling using Gudjonsson Blame Attribution Inventory–Revised (GBAI-R) for 177 young male violent offenders. GBAI scores were compared to ASPD and psychopathy according to the Psychopathy Checklist–Revised. Results showed that individuals with ASPD and those with higher degrees of psychopathy tended to report significantly less guilt and higher degree of mental control than other subjects. Another finding was a weak relationship between ASPD, high scores on psychopathic traits and external attribution. We suggest these results might be explained by admitting poor mental control may be extra difficult for individuals belonging to either of these groups and that the external attribution items do not separate causal from moral responsibility.     

The persistence of collective guilt

Abstract

This paper asks why, despite the obvious difficulties entailed, the notion of ‘collective guilt’ continues to feature in discussions of the responsibilities of one group towards another. The aim is to clarify how it is that the partial success of repeated attempts to distinguish individual from collective guilt and to confine the latter to a pre-modern moment reveals something of our present. The key contributions to this discussion made by Hannah Arendt and Karl Jaspers in relation to Nazi Germany are examined for their ambivalences in this regard, as are some recent developments in international law and politics. The suspicion is that collective guilt is a notion that modern political reason cannot embrace and yet which it cannot entirely disavow: ‘collective guilt’ and the element of fate that it implies is central to our understanding of citizenship, nationhood and political commitment. The paper thus attempts an analysis of the durability of the concept of collective guilt; it is not an evaluation of its usefulness, but an exploration of its persistence.     

The effects of beliefs and information about hypnosis on the legal defence of automatism through hypnosis

Abstract

The aims of this study were to assess the impact of public conceptions about the nature and coercive powers of hypnosis, and information regarding different approaches to hypnosis, on the plea of automatism through hypnosis in a criminal trial. Subjects were assigned to three groups. Two were presented with criminal cases in which automatism through hypnosis was implicated, as well as duress; one of these groups received information about different approaches to hypnosis. The third received the same cases, but with duress alone. Results showed that, when automatism through hypnosis was implicated as well as duress, the defendant offering the plea was judged less responsible, however, he was not judged less guilty than when duress alone was the defence. Also, subjects presented with the plea of automatism tended to be more sceptical about the idea than those not presented with this plea. The provision of information on different approaches to hypnosis was largely ineffective in altering beliefs and judgments. Judgments of guilt and responsibility were, however, strongly influenced by beliefs about automatism through hypnosis.     

片面共犯的机能性解读--以间接正犯为视角展开

片面共犯理论的基石并非行为共同说。行为共同说只是不要求在认定共同犯罪时先对行为加以“定型”,并非不要求行为人对共同行为存在“意思联络”,因此,行为共同说不能为片面共犯提供基础。现有理论对于片面共犯的存废讨论流于表面,仅立足于概念本身,鲜有涉及制度价值层面的探讨。片面共犯是间接正犯的替补概念,间接正犯无法解决的问题,可以基于可罚性认定为片面共犯加以处罚。间接正犯的理论存在替补角色、支配说、实行行为说之聚讼,片面共犯必须在间接正犯特定理论的层面上加以理解。     

对寻衅滋事罪之“强拿硬要”的司法认定

由于寻衅滋事罪与其他犯罪在构成要件上存在一定程度的重合,其行为方式“强拿硬要”与抢劫罪、敲诈勒索罪的手段行为区分并不明显,因而在司法实践中往往对其难以把握,造成了执法上的一定困难。但寻衅滋事罪之“强拿硬要”在主观犯意、客观罪责上与侵财型犯罪存在显著区别,所以,对其进行认定时应当遵循主客观相统一的原则,同时还应考量该行为情节程度上的入罪限制。     

论目的犯的地位

由于目的犯中犯罪目的的难证明性和侵犯人权的可能性,其地位遭到司法界和理论界的广泛质疑。本文通过分析目的犯与四种定罪机制的关系,肯定了目的犯在定罪中的重要地位,并提出通过规定犯罪目的的基础事实和设置兜底罪等方法,对目的犯进行完善。