论民众性诉讼情绪与司法独立——邓玉娇等案给予的警示

民众性诉讼情绪是专业性质的民意,民意是政治的,诉讼情绪是法律的,在民众性诉讼情绪面前,邓玉娇案迅速落下法槌,完成了民众对司法的一次监督。本文结合多个案例,提出了民众性诉讼情绪这一概念,论述了其特征,剖析了其价值,重点是其与司法的冲突关系和正确疏导。     

RETHINKING CHINESE EVIDENCE THEORIES AND RECONSTRUCTING SYSTEM OF EVIDENCE: “A THREAD FOR THE PEARLS OF CHINESE EVIDENCE”

This article analyses Chinese traditional evidence theories that have evolved over a long period of time, to explore which theory, between objectivity and relevancy, best represents the basic attribute and logical thread of evidence. These theories are considered in the context of issues arising in evidential adjudication, including: the “Mirror of Evidence,” truth, the probability of proof standard, the choice between a notion of pursuing 100-percent certainty in adjudication and that wrongful acquittals are better than wrongful convictions, and the statutory proof doctrine comparedwith the system of free proof. Finally, the article presents the framework of and methods for drafting provisions of procedural evidence of the People’s Court.     

试论非法证据排除的程序规制——关于完善庭审阶段非法证据排除的裁判程序的思考

防止冤假错案,维护程序公正,实现惩罚犯罪与保障人权的统一,非法证据排除规则的制定,可谓任重道远。无疑,法律的颁布不等于实施。除了刑事法官的价值观念、法律思维、职业习惯的主观因素影响及刑事司法实践的客观因素作用,作为价值性冲突规范,非法证据排除规则的理解、适用仍有其难处。本文以庭审阶段非法证据排除的程序规制为切入点,拟从法解释学的角度,结合本土刑事司法实践特征,以求进一步明晰非法证据排除规则的运用,从而更为有效地实施排除规则。     

Formation of procedural beliefs about legal arenas: Do people generalize from loosely related past legal experiences?

Few studies have addressed how people develop beliefs about legal authorities' neutrality and fairness. Using a cross-sectional survey of taxpayers (N = 147), this study examines the sources and processes underlying the formation of these beliefs. Controlling for significant contributions of media stories about audits and past audit experiences, past loosely related negative legal events (traffic court) also shape perceptions that tax auditors are more biased and unfair. Information about police officers exchanged in conversations also creates perceptions that tax auditors are more biased. These generalization effects occur only when people do not have prior direct experience with tax auditors. For taxpayers with prior audit experience, positive experiences are related to more positive perceptions of auditors and media stories about tax audits produce more negative perceptions. The findings suggest that positive and negative past experiences shape beliefs only when they disconfirm prior perceptions based on imagination or indirect sources. Implications and future research directions are discussed.     

Procedural justice policing and citizen compliance behaviour: the importance of emotion

Research consistently finds that if authorities use procedural justice in encounters with the public then this will promote citizen cooperation and compliance with the law. Recently, the importance of people's emotional reactions in response to procedural justice and injustice, and the subsequent effect this has on behaviour have been examined. This paper utilises a multi-method approach to examine the mediating role that negative affect plays in the effect of procedural justice policing on citizen compliance behaviour. Study 1 utilises both cross-sectional and longitudinal field survey data collected from Australian citizens who have had a recent contact with a police officer. Study 2 utilises an experimental vignette study designed to assess the causal mechanisms involved in the procedural justice–emotion–compliance relationship. Both studies find that procedural justice is linked to people's self-reported propensity to comply with police. Study 1 and 2 also find that negative affect mediates this relationship. These findings have important implications for training police to interact with the public in a manner that reduces negative emotions and ensures the highest level of compliance from the public.     

Beyond normative constraints: Declining institutionalism and the emergence of substantive and procedural justice

Popular notions of what it means to be put on trial invariably generate thoughts of the adversarial criminal trial, most often before a judge and jury. However, the criminal trial as the site for the testing of evidence of wrongdoing via a model of proof that proceeds according to prescribed processes in a normative institutional milieu is in decline. Controversially, this decline has been met with resistance from the legal profession, academics, policy makers and other stakeholders seeking to preserve the due process model that defines the criminal trial as an adversarial exchange between state and defendant. While the due process model continues to dominate as popular conceptualisation, the twenty-first century criminal trial has changed to such an extent that it is no longer seen as the quintessential form for the meting out of procedural fairness and testing of state's evidence, that emerged toward the end of the seventeenth century. Rather, the rise of control orders, modifications to the law of evidence, and the right of the accused to confront their accuser, together with the inclusion of non-traditional agents of justice, specifically victims and the community, has brought forward an era of substantive and procedural justice that lies beyond the normative constraints of the criminal trial. Robed counsel and bewigged judges beware; the advent of substantive and procedural justice has allowed for greater innovation transgressing the orthodoxies of criminal law in common law systems of justice. This paper will consider the virtues of the introduction of a transgressive criminal procedure.     

浅析诉访分离对政法工作的新挑战

近年来,涉法涉诉信访案件居高不下,“群体访”、“越级访”、“重复访”情况时有发生,信访人及近亲属缠访、闹访情况比较严重.依法妥善解决涉法涉诉信访问题,诉访分离是关键.诉访分离是解决涉法涉诉信访问题的有效途径,政法机关唯有理性改革、整合资源、完善机制、正确面对,才能适应修改后的民事诉讼法和司法改革的需要,才能引导好、处理好、解决好涉法涉诉信访难题.     

也论警察程序正义

现代法治国家建设中,警察法治建设是不可或缺的部分,而对于法治文明的实现具有突出作用的程序,必然要率先走向文明,确立程序正义。警察程序正义要求在进行任何一种警察行为时,都必须遵循起码的、正当的程序。警察程序正义的内涵应当是实体性的程序正义,而不能把程序仅仅作为形式上的存在。     

What price fairness when security is at stake? Police legitimacy in South Africa

The legitimacy of legal authorities – particularly the police – is central to the state's ability to function in a normatively justifiable and effective manner. Studies, mostly conducted in the US and UK, regularly find that procedural justice is the most important antecedent of police legitimacy, with judgments about other aspects of police behavior – notably, about effectiveness – appearing less relevant. But this idea has received only sporadic testing in less cohesive societies where social order is more tenuous, resources to sustain it scarcer, and the position of the police is less secure. This paper considers whether the link between process fairness and legitimacy holds in the challenging context of present day South Africa. In a high crime and socially divided society, do people still emphasize procedural fairness or are they more interested in instrumental effectiveness? How is the legitimacy of the police influenced by the wider problems faced by the South African state? We find procedural fairness judgments play a key role, but also that South Africans place greater emphasis on police effectiveness (and concerns about crime). Police legitimacy is, furthermore, associated with citizens' judgments about the wider success and trustworthiness of the state.     

PUBLIC COOPERATION WITH THE POLICE IN GHANA: DOES PROCEDURAL FAIRNESS MATTER?*

Recent criminological emphasis on the salience of normative concerns, such as procedural fairness and legitimacy, in understanding public law‐abiding behavior has been based on evidence from Anglo‐American studies. This article examines these issues in the African context based on general survey data from Accra, Ghana. The results show a lack of empirical validity, in the Ghanaian context, of the Sunshine–Tyler legitimacy scale. The results also show that public cooperation with the police in Ghana is shaped by utilitarian factors such as perceptions of current police effectiveness infighting crime. It is argued that the importance of perceived police effectiveness to public cooperation is a result of police legitimation deficits and the public's alienation from the Ghana police, which in turn are traced to the colonial history of the police and current poor police performance.