科学技术在刑事诉讼中的价值

科学技术本身具有积极和消极两个方面的价值属性。科学技术在刑事诉讼中的运用,对于实现司法公正和提高诉讼效率具有重要的积极价值,但是对于刑事诉讼程序的正当性和案件事实的准确查明也存在一些负面影响。为了在刑事诉讼中实现科学技术价值的最大化,有必要从研究方法的转型、观念的转变和制度的完善三个方面努力。     

环境公益诉讼检察权的双重职能定位与优化路径

环境公益诉讼对检察权行使具有重大意义.民事环境公益诉讼中检察权的奠定主要依托公共信托理论和"私人检察总长"理论.在功能上,检察机关代表国家行使的检察监督权可区分为"社会治理性监督"与"公权制约性监督"两大类,可承担并行双重职能.从原则上来看,需要优化检察权双重职能,其重心是职能分设与协同运作、内嵌构造与外部联运以及适度...     

Aesthetic Vertigo and the Jurisprudence of Disgust

This article engages with the intersection of law, legitimation and aesthetics by examining the controversies surrounding the exhibition in 1997 of two artworks: Piss Christ by Andres Serrano, andMyra by Marcus Harvey. The article is less concerned with issues such as freedom of expression or the rights of display, which by now are well-known in debates on censorship and the arts; rather, its focus is on the consequences for an artwork's exhibition when it is deemed to be `disgusting'. The judgment of the two selected artworks as disgusting is traced in public discourse, through newspaper reports, public protest, and in socio-legal responses to the artwork such as a civil suit for possible obscenity, in decency or blasphemy. The argument suggests that the jurisprudence of disgust in its response to a sensation of ‘aesthetic vertigo’ can provide a key means of understanding aesthetic controversies, and their legal regulation. This revised version was published online in July 2006 with corrections to the Cover Date.     

论米歇尔·福柯的知识考古学

福柯的“知识考古学”从知识的轴线上提出了对知识史根本概念的重构问题。它要求恢复历史文献的考古意义,从而开启了爱通向被历史学家忽略掉的历史现象的一个通道：关注那通常被历史学家删掉的零落时间的印迹,从人类思维长期的连续性中探测那些被中断的偶然性。它要求将档案当作历史埋藏物来看,从而动摇了传统和现代哲学的总体历史观念,是对愈来愈深地陷入困境的西方现代性社会和文化的一种清醒的反思。     

Power to make land dispossession acceptable: a policy discourse analysis of the Merauke Integrated Food and Energy Estate (MIFEE), Papua,Indonesia

The Merauke Integrated Food and Energy Estate (MIFEE) in Papua, Indonesia, is a state-led mega-project to transform local agriculture through large-scale corporate investment in food crops and biofuels for foreign markets. The project has led to extensive land dispossession, accompanied by devastating social and ecological impacts. This contribution analyzes how discourse regarding food and energy crises has been employed to release land from customary tenure to a coalition of state, corporate and local elite actors. The interests of these actors have converged on the state-led mega-project to transform local agriculture through large-scale corporate investment in food crops and biofuels in the name of national food security.     

Has the human security agenda come of age? Definitions,discourses and debates

The concept of human security (HS) and its accompanying agenda, 20 years after the publication of the Human Development Report (1994), are still in a state of flux. This article summarises the extent to which, based on an in-depth analysis of the original HS dimensions in the articles in this Special Issue, the HS agenda has evolved, to the extent that it has become a clearly articulated concept both in academic terms and as a guide to concrete political action for policy-makers. It is argued in this article, perhaps not surprisingly given the nature of the concept and its dimensions, that there is a great degree of variation over space, place and time in the way that it is constructed, received and appropriated. Importantly, it is suggested that personal, political and community security have all struggled to develop a shared understanding that has become a firm guide to action, whereas food security, health security, environmental security and economic security have not only become firm parts of debate and discussion, but also significant policy areas that have had considerable time, effort and money devoted to resolving. Overall, the debate on HS is still also very much in flux 20 years on, but there can be no doubt that it has had a major impact academically and in terms of political action.     

Constructing “Hmong American Youth”: A Critical Discourse Analysis of 25 Years of Academic Literature on Hmong American Youth

Hmong American youth have been in the United States for 40 years, and yet research still suggests a binary portrayal of their experiences—model minorities or struggling delinquents. In this study, we use critical discourse analysis to examine academic literature and the construction of “Hmong American youth.” We examine academic literature discursive practices and power in controlling the discourse on Hmong American youth and shaping practices and policies. Using critical discourse analysis, we call attention to academic literature and its power, and challenge researchers to reconstruct a more complex discourse of Hmong American youth that captures their histories, possibilities, and desires.     

Implementing the human right to water and sanitation: a study of global and local discourses

This article explores global and local discourses on how to implement the newly recognised human right to water and sanitation (HRtWS). We analyse the potential limitations of the human rights frame in the context of critiques that human rights are a liberal, Western discourse that does not reflect the lived experiences of non-Western countries. Through two case studies we find that there are two discourses emerging on how to implement the HRtWS. At the global level, as seen in the work of the UN Special Rapporteur on the HRtWS, we find a hegemonic discourse that is state-centric and market-friendly. In Bolivia, a country currently implementing a human rights-based approach to water services, we find a counter-hegemonic discourse on implementation. We argue that the hegemonic discourse is incomplete and does not fully address barriers to fulfilment of the right, such as state corruption and the needs of peri-urban residents.     

Biologising Paternity,Moralising Maternity: The Construction of Parenthood in the Determination of Paternity Through the Courts in Portugal

This article explores how the Portuguese legal system’s efforts to determine paternity of children born outside legal marriage, automatically initiated by the Registry Office when a birth registration does not indicate the father, reveal cultural models which reinforce the naturalisation of the differences between mothers and fathers, with significant effects on the social construction of parental roles and on expectations of family organisation and female sexual behaviour. The article relies on ethnographic data drawn from direct observation of court proceedings for the determination of paternity, as well as interviews with judges and prosecuting counsels all over the country. It is argued that judicial practices in the specific context of courtroom investigations of paternity reinforce gender inequalities in two interrelated ways. On the one hand, they are strengthened in the discursive practices performed during the course of the interactions between judges, prosecuting counsels and the mother of the child, as well as the alleged father. On the other hand, the normative model of family life and the dominant ideology of women’s and men’s relationships, which emphasise women’s socially subordinate position, are revealed by the selective use of DNA testing in paternity cases, based on the judge’s evaluation of the mother’s sexual behaviour. The article argues that legal attempts to establish the paternity of children born outside marriage—though based on novel technical and supposedly objective procedures—tend, nevertheless, to reproduce the prevailing patriarchal structures.

论刑事诉讼中的电子证据

信息时代变革的节奏是前所未有的,信息的存在与取得方式的飞跃使证据学研究乃至证据立法面,临诸多考验。在证据信息化的大趋势下,以计算机及网络为依托的电子证据在证明案件事实的过程中起着越来越重要的作用,本文对刑事诉讼中电子证据的相关问题进行了探讨。