死缓限制减刑的刑法教义学分析

死缓限制减刑弥补了我国刑罚体系的部分结构性缺陷,但也凭添了我国死刑制度的复杂性,对其进行刑法教义学分析十分必要.在刑罚体系上,死缓限制减刑属于一种量刑制度,属于死缓的法律后果之一.在死缓限制减刑的适用过程中,应通过体系性思考和类型化构建来引导和规范其标准的适用,最大程度地实现司法协调、保证个案正义.     

《联合国国家及其财产管辖豁免公约》与国际民商新秩序的构建

国际民商新秩序的提出对于国际私法的发展具有重大意义。国际民商新秩序要求国际民商事关系中的当事人处于平等的法律地位,如果国家在国际民商事交往中享有豁免权,则不利于国际民商新秩序的构建。关于国家豁免的范围,存在着绝对豁免主义与相对豁免主义的分歧。绝对豁免与国际民商新秩序的构建背道而驰,相对豁免与国际民商新秩序的构建相契合。《联合国国家及其财产管辖豁免公约》第一次在全球性国际公约中规定了国家及其财产管辖豁免原则,标志着限制豁免说彻底战胜了绝对豁免说,是国际民商新秩序构建进程中的里程碑。     

Editorial

This article concerns the problems of proportionality in the theory of punishment. The problem is how to determine whether the severity of a punishment for a criminal offense is proportional to the seriousness of that offense. The resolution to this problem proposed in the article is that, first, one understand punishment as pain or loss intentionally and openly inflicted on someone S in retaliation for something S did, by a person or agent who is at least as powerful as S, and, second, one take such retaliatory pain or loss as, within stable social groups, a means for preserving social order. Accordingly, it is argued that, on this proposal, the measure by which the severity of punishment is determined to be proportional to the seriousness of the crime for which it is inflicted is the minimal amount of pain or loss necessary to preserve social order. Sentencing policies that follow this measure, it is then observed, tend to yield less severe punishments than the policies that classical deterrence theory yields. Finally, the article offers an argument for regarding as morally more defensible sentencing policies whose goal is preserving social order than sentencing policies whose goal is that of classical deterrence theory, which is to achieve the smallest incidence of crimes consistent with not diminishing the overall welfare of society.     

Language choice and national development: A typology for Africa

The choice of an official language of politics and administration for African states is a good focal point from which to view other aspects of politics. A typology of language choice, based on whether the polity is linguistically homogeneous or heterogeneous; and on whether an indigenous or a non‐indigenous language is official, discriminates among four different language structures. Vignettes of language policy in Tanzania, Kenya, Senegal and Ethiopia elucidate each language structure.

Data is presented to show that different political tasks are associated with different language choices, and that the differential ramifications of language situation, for limiting group demands, inducing social mobilization and managing international dependency are, depending on language situation, important.     

Why longer prison terms fail to serve a specific deterrent effect: an empirical assessment on the remembered severity of imprisonment

For a prison sentence to exert a specific deterrent effect, the ultimate question is that imprisonment is remembered as aversive once the offender is released, and is contemplating future criminal activities. Drawing on insights from social psychology and cognition, this study assessed (1) how inmates remember the severity of their imprisonment following release, and (2) how the severity as experienced while being incarcerated (e.g. the worst or the last moment) affects its recollected aversiveness among a sample of Dutch inmates who were released for approximately six months (n?=?696). The findings indicated that the severity as experienced while being incarcerated is strongly related to the severity as recollected following release, net of the duration of confinement. Strikingly, to the extent that the length of imprisonment affected its recollected aversiveness, it did so in the opposite direction than traditional deterrence research presumes. Implications for correctional policy and future research are discussed.     

Does the death penalty save lives?

Research Summary Economists have recently reexamined the “capital punishment deters homicide” thesis using modern econometric methods, with most studies reporting robust deterrent effects. The current study revisits this controversial question using annual state panel data from 1977 to 2006. Employing well‐known econometric procedures for panel data analysis, our results provide no empirical support for the argument that the existence or application of the death penalty deters prospective offenders from committing homicide. Policy Implications Although policymakers and the public can continue to base support for use of the death penalty on retribution, religion, or other justifications, defending its use based solely on its deterrent effect is contrary to the evidence presented here. At a minimum, policymakers should refrain from justifying its use by claiming that it is a deterrent to homicide and should consider less costly, more effective ways of addressing crime.     

Least restrictive practice: its role in patient independence and recovery

One of the five overarching principles of the Mental Health Act: Code of Practice is to provide patients with care and treatment which is least restrictive whilst encouraging recovery and promoting independence. However, there is limited research which explores the application of these principles within a medium secure unit. The aims of the research were to explore what are patient’s experiences of least restrictive practices and to what extent do they perceive that least restrictive practices maximise their independence and recovery. Semi-structured interviews were carried out with 12 male inpatients within a medium secure unit. Five themes were evident: Positive Changes, Perceived Lack of Transparency, Social Isolation, Institutionalisation and Normality. It was found that patient’s perceived that there was lack of shared understanding between staff and patients of what is considered least restrictive. Patient recovery was promoted through positive risk-taking, the reduction in the use of seclusion and through the promotion of meaningful activities that resembled life in the community. Nevertheless, patients perceived that there was a lack of opportunities to socialise with patients from other wards. Due to the security level of the hospital patients perceived that independence was not achievable.     

THE IMPACT OF BRITISH COUNTERTERRORIST STRATEGIES ON POLITICAL VIOLENCE IN NORTHERN IRELAND: COMPARING DETERRENCE AND BACKLASH MODELS*

Since philosophers Beccaria and Bentham, criminologists have been concerned with predicting how governmental attempts to maintain lawful behavior affect subsequent rates of criminal violence. In this article, we build on prior research to argue that governmental responses to a specific form of criminal violence—terrorism—may produce both a positive deterrence effect (i.e., reducing future incidence of prohibited behavior) and a negative backlash effect (i.e., increasing future incidence of prohibited behavior). Deterrence‐based models have long dominated both criminal justice and counterterrorist policies on responding to violence. The models maintain that an individual's prohibited behavior can be altered by the threat and imposition of punishment. Backlash models are more theoretically scattered but receive mixed support from several sources, which include research on counterterrorism; the criminology literature on labeling, legitimacy, and defiance; and the psychological literature on social power and decision making. In this article, we identify six major British strategies aimed at reducing political violence in Northern Ireland from 1969 to 1992 and then use a Cox proportional hazard model to estimate the impact of these interventions on the risk of new attacks. In general, we find the strongest support for backlash models. The only support for deterrence models was a military surge called Operation Motorman, which was followed by significant declines in the risk of new attacks. The results underscore the importance of considering the possibility that antiterrorist interventions might both increase and decrease subsequent violence.     

美国“一体化威慑”的战略逻辑：以AUKUS的演进为范例

在大国竞争背景下,美国拜登政府正式提出并实践“一体化威慑”战略概念。“一体化威慑”意味着通过跨越领域、区域、冲突域、部门、盟国和伙伴等五个维度的“一体化”调度,统筹“拒止性威慑”“韧性威慑”“直接和集体施加成本进行威慑”三种威慑逻辑,针对特定的竞争对手和安全问题施加威慑。在战略逻辑上,美国以“不对称多极”格局为基础,以海洋特别是西太平洋为主要场域,以中国为主要威慑对象并以“印太”为建构区域,通过“网络化”的作用方式,灵活统筹并“量身定制”地施加威慑。在“印太战略”推进下,“美英澳三边安全伙伴关系”(AUKUS)成为美国实施“一体化威慑”的范例。AUKUS由美国联合最亲密盟友发起,针对美国所谓的战略竞争对手中国,以西太平洋特别是南海、台海、东海为战略前沿,通过将“欧洲—大西洋”引入“印度—太平洋”来加强跨区域威慑,并以“全政府”方式运作,囊括核潜艇、高超声速等先进能力、网络和太空等重要领域,考虑不同冲突形态,不断取得进展。然而,AUKUS的进一步推进将面临诸多“一体化威慑”固有的内在和外在困难,未来仍存在不确定性。