心智障碍者监护理论争议与发展方向——以《残疾人权利公约》第12条为视角

心智障碍者即是成年人监护制度的主要适用对像,也是《联合国残疾人权利公约》第12条的调整对象。《公约》第12条倡导的尊重心智障碍者人权和自由的观点受到国际社会的普遍认可与尊重,但《公约》第1号《一般性意见》对《公约》第12条的解释确属脱离实际,导致我国国内对成年人监护的争论此起彼伏,无行为能力制度是否有存在的必要、监护是否应与行为能力相脱离、是否应以支持决策全面取代监护是各方争议的核心问题。在厘清争议的前提下,未来应通过司法解释对《民法总则》的相关内容做出细化规定。     

网站侵权行为入罪思考--以共犯行为正犯化理论为破解思路

许多网站为网络用户提供免费存储空间供网民自由上传、下载文档，本身并不直接参与侵权作品的复制、发行，但实际上却提供了发行“帮助”。如果按照共同犯罪理论处罚，存在正犯不构成犯罪、缺乏犯意联络等局限性；用我国《刑法》现有罪名评价，又不符合相关罪名的规范性特征。最有效的定罪思路应当是通过“共犯行为正犯化”理论将网站的“帮助行为”直接解释为“实行行为”，按照侵犯著作权罪定罪量刑，或者另定其他罪名。     

Addressing the Victim–Offender Overlap: Advancing Evidence-Based Research to Better Service Criminally Involved People with Victimization Histories

ABSTRACT

We studied a representative sample of male and female inmates (N = 266) in two prisons (remand and sentenced) in Western Canada. Our research asks: what are the self-reported victimization histories of currently incarcerated men and women prior to first charge (i.e., before becoming known offenders) and during their life-course? As a second objective, we discuss how we sought to mobilize our findings to change relevant policy and police practice. We found that the overwhelming majority of our female participants had experienced violent, sexual, or property victimization throughout their life course; the majority had experienced victimization prior to first charge. Based on our findings, the local police service introduced victim services for the incarcerated population as well as made changes to their recruit training program to make new police officers aware of the victim–offender overlap and its effects. If replicated, the introduction of victim services for inmates in other jurisdictions and the education of police officers on the victim–offender overlap would emphasize the humanitarian recognition of supporting victims who need help, while also having a series of subsidiary benefits with respect to re-offending, resiliency, and police legitimacy.     

Criminal law and mentally ill offenders in comparative perspective

Abstract

In this stick we compare legal arrangements dealing with mentally disordered offenders in the criminal law systems ct Belgium, Canada, Germany, the Netherlands, Norway, Sweden, and the United Kingdom. To describe relevant diffesenoes and similarities in the arrangemeats, we used a checklist containing antral aspects of adjudication, assessment and treatment of mentally ill offenders. These aspects concern: (1) the legal classifications of mental illnesses that can lead to exclusion of criminal responsibility: (2) the acceptance of diminished capacity as a partial excuse; (3) the possibilities for imposing security measures of compulsory treatment instead of or next to criminal punishment; (4) the conditions for their imposition in terms of seriousness of crimes committed and dangerousness of offenders; (5) the available hospitals or special clinics for executing security measures; (6) the role and task of forensic mental health professionals in assessing the offender's state of mind and in advising compulsory treatment; (7) the rules for duration, prolongation and termination of the measures. The findings of this comparative analysis are evaluated in light of legal protection for mentally disordered offenders.     

Restorative justice in prisons

Restorative justice (RJ) has found significant utility outside the prison setting. For many reasons, it has not received the same level of consideration inside the institution. While not every case can, or perhaps should be considered for restorative justice processing inside the prison, some could easily fall into the broad purview range of restorative and transformative justice. We provide examples of RJ practices that exist in some prisons focusing on: offending behavior and victim awareness programs, community service work, and victim‐offender mediation, as well as prison systems that exhibit a RJ philosophy. Also considered are the effectiveness of prison RJ practices, and the limitations of such efforts. Although RJ has the potential to have a positive impact on the work of prisons and the experience of imprisonment, it has not found wide acceptance and is currently limited to a relatively small number of prisons and then often only delivered in partial form. We believe that RJ has a realistic future in prison settings and that the contradictions that may be identified are not debilitating.     

Beliefs about child witnesses: A survey of professionals

This research addressed how professionals involved with the legal system evaluate children, primarily between 4 and 8 years old, as witnesses. In particular, we focused on professionals’ beliefs and opinions regarding children's memory, suggestibility, and behaviors as they relate to witness credibility. In addition, we surveyed professionals’ evaluations of investigative methods related to reliability. Four hundred and seventy-eight professionals working with children in the Norwegian legal system (i.e. judges, police detectives, psychologists, child psychiatrists, prosecutors, and defense attorneys) completed a questionnaire about child witness issues. Results indicated that psychiatrists as well as police officers expressed greater belief in children's capacities than did other groups, whereas defense attorneys and psychologists were more skeptical regarding children's general credibility. Psychiatrists and psychologists both, however, tended to favor, more than did legal professionals, the use of clinical techniques with children in abuse investigations. Implications are discussed in relation to professionals’ attitudes toward children as witnesses.     

The association between the offender–victim relationship,severity of offence and attribution of blame in mentally disordered offenders

Abstract

The aim of this research was to investigate the association between the offender–victim relationship, severity of violence and attribution of blame for a violent act. Data were collected from 65 male psychiatric inpatients from two secure units. Participants were divided into three groups according to how well they knew their victim: victim well-known, victim acquaintance and victim stranger. Violent acts were further ranked according to offence severity. Participants were administered the Quick Test (QT) and the Gudjonsson Blame Attribution Inventory (GBAI). Although there was a trend towards higher guilt attributions when the victim was well-known to the perpetrator, this relationship was complicated by the severity of the violent act. The most severe ranking of offence (i.e. murder/manslaughter) was most common in the offender group who knew their victim well. Furthermore, guilt-feeling attributions were highest in the most severe ranking of offence. The implications of these findings for assessment and intervention programmes are considered.     

The process of change in offender rehabilitation programmes

Abstract

Whilst the overall effectiveness of offender rehabilitation programmes in reducing recidivism is now well established, there has been less discussion of the reasons why rehabilitation programmes may be unsuccessful for some offenders. In this paper we suggest that models of change developed in counselling and psychotherapy may have utility in explaining how offender rehabilitation programmes bring about change, and argue that the dominance of cognitive–behavioural treatments in the rehabilitation field means that those offenders who have particularly low levels of problem awareness may be at increased risk of treatment failure. Understanding more about the mechanisms by which programmes help offenders to desist from offending is likely to lead to the development of more responsive and, ultimately, more effective programmes. Some suggestions for those involved in the delivery of offender rehabilitation programmes include: being mindful of the sequence of components of programmes, the development of preparation (or readiness) programmes and offering a broad suite of programmes to cater for different stages of problem awareness and assimilation among offenders.     

Long-term follow-up of criminal recidivism in young sex offenders: Temporal patterns and risk factors

Abstract

Recent studies indicate that risk for criminal re-offending in identified adult sex offenders may persist decades after the index offence, calling for inquiry into these issues also for younger sex offenders. The author studied temporal patterns for criminal reconvictions and the validity of 16 empirically motivated risk factors for recidivism among all young sex offenders (15–20 years of age) subjected to pre-sentence forensic psychiatric evaluations in Sweden during 1980–1995 (N = 126). The Ss were followed from release and for an average of 115 months. One-hundred-and-seventeen (115 male, 2 female) Ss were available for follow-up with a mean time-at-risk of 80 months. Base rates for sexual and violent non-sexual reconvictions were 30% and 42%, respectively. Using time-at-risk-adjusted hazard ratios derived from Cox regression, characteristics indicative of deviant sexual interest (any previous sex offending behaviour, an index sex offence in a public area, involving a stranger victim, offending on two or more offence occasions, and two or more victims) were found to increase the risk for sexual recidivism. Markers of antisocial lifestyle (early signs of DSM-IV Conduct Disorder and any prior violent conviction), sex offence-related characteristics indicating aggression proneness (use of threats or force and physical victim injury), and victim penetration, increased the risk for violent non-sexual reconvictions. Survival analyses indicated that the rate of sexual reconvictions as a function of time at risk decreased distinctly after 6–7 years whereas the rate for violent non-sexual reconvictions remained largely the same.     

Self-serving aspects of social cognition among adult offenders

Abstract

The different cognitive beliefs about offending exhibited by offenders are discussed. The question addressed in this paper concerns the extent to which beliefs and social knowledge about offending differentiate between different characteristic types of offending (drug abuse, theft, sexual and violent). Two hundred and ninety adult male prisoners in four Taiwanese prisons provided self-reported criminal histories. From these a crime index indicative of the proportion of offences of each type (or specialism in offending) was calculated for each offender. Offenders legitimize their own offending while they tend to regard the offences of others negatively. In this way, cognitive representations may reinforce an offender's specific pattern of criminal acts while also insulating them from pressures towards other criminal activities. Evidence is presented that offenders' social knowledge development is consolidated around crime themes.