构建中国刑事被害人国家补偿制度之思考

The theory of recovering social justice, public remedy to rights, balance of interests and value of benefits are the basis for the establishment of state compensation system for victim of crimes, which is necessary and feasible in China. In accordance with the principles of obtaining justice and fair treatment, relying mainly on the offender’s compensation, supplemented by state compensation, state compensation with certain conditions, state compensation in due process, and the degree of compensation proportionate to the extent of damage, the related criminal legislation should provide the scope of subjects eligible for compensation, the object and limit of compensation, the competent agency of compensation, the procedure of compensation and so on. Sun Qian, professor and tutor of doctorate candidates, is presently a deputy prosecutor-general of the Supreme Procuratorate with the title of Grand Prosecutor of China. He once held posts as director of former Prosecutor-General’s Secretariat, deputy director-general of the Criminal Prosecution Department, president of the National Prosecutors’ College, and chief prosecutor of Jiangxi Province. Prosecutor Sun, also vice president of China Law Society and vice president of China Society of Prosecutors, specializing in criminal system and criminal law, has released more than 100 theses in academic journals such as Journal of Law and China Legal Science and published more than 20 books as author or editor. In 2004, he was nominated as a member of the “First Group of National Talents Project in the 21^st Century” launched by seven central ministries of China. Moreover, Deputy Prosecutor-General Sun was once a representative of the 10^th National People’s Congress of China.     

被害人参与量刑程序：现状、困境与展望

被害人参与量刑程序是量刑程序改革的重要组成部分,对于化解社会矛盾、促进社会和谐具有重要意义。从当前试行效果看,这一制度设计在实践中遇到一些困境。2012年修改后的刑事诉讼法为被害人参与量刑程序、发表量刑意见预留了足够空间。未来应区分＂被害人影响陈述＂与被害人的量刑意见,处理好被害人的量刑意见与检察机关的量刑建议的关系,进一步完善具体的制度设计。     

从检察权的混合性质角度解答刑事和解问题

刑事和解(V ictim-O ffender Reconc iliation)是一种解决刑事纠纷的新的制度设计,也称为被害人与加害人的和解、被害人与加害人会议、当事人调停或者恢复正义会商。当前,检察机关进行刑事和解和有必要,能全面履行检察职责,兼顾国家公诉权与被害人诉权;、更为合理地兼顾正义与效率价值。当然,对刑事和解的范围应合理界定,既不能过大,也不能太窄。在刑事和解中,检察机关应处于监督者地位。     

刑事被害人陈述的证据学思考

有关被害人陈述制度,在刑事司法实践中存在诸多困扰和矛盾之处,被害人不同诉讼身份所带来的紧张关系对其陈述的证明力造成不利影响;被害人的控诉职能导致其自由陈述受到限制。新近立法对被害人陈述制度做出了部分努力,但仍不完善。因此,必须修正被害人身份冲突;确立人证取得以任意侦查为原则,以强制侦查为例外的取证规则;明确非法取证行为的审查主体及程序;确立翻证免受刑事追诉为原则,承担刑事责任为例外的规则。     

Sinners and Saints: The Role of Social Standing Evidence in Capital Sentencing

The authors’ purpose was to examine how the social standing of victims and defendants impacted capital sentencing decision making. Participants were 305 death-qualified community members recruited through Amazon’s Mechanical Turk workforce who acted as mock jurors in the sentencing phase of a capital trial. This experiment was a 3 Victim Impact Statement Social Standing (none, low, high) × 3 Execution Impact Evidence Social Standing (none, low, high) fully crossed, between-groups factorial design. Social standing of the victim did not directly or indirectly impact sentencing decisions, but the introduction of any form of execution impact evidence resulted in more positive evaluations of the defendant and fewer death sentences. These effects were moderated by pro-death penalty attitudes. Our findings have implications for how prosecutors and defense attorneys use character evidence to humanize victims and defendants.     

刑事被害人上诉权研究

被害人上诉权的缺失 ,是对被害人主体地位的忽视 ,它使得刑事诉讼原理自身陷入矛盾 ,并且与强化刑事被害人权益保障的趋势相违背。赋予被害人上诉权 ,标识刑事程序从以被告人权利保障为重心逐步转向寻求被害人与被告人权利保障的平衡。     

论我国刑事被害人的权利保障——中日法律的实效分析

我国刑事被害人权利保障体系的构建,一方面应注重体系的完整性,另一方面,应充分关注各种制度实践向度的现实可行性.从中日法律的具体实效角度进行比较分析,有利于全面规范我国被害人的权利保障、权利认知与权利救济制度,立足现实国情,提升对刑事被害人权利的关注,有效保障被害人利益.     

受害人同意的效力限制

在美国侵权法中,受害人同意是被告针对原告提起的故意侵权[1]诉讼可以主张的抗辩事由之一.受害人同意是被告针对原告提起的故意侵权诉讼所主张的抗辩事由.被告的抗辩得到法庭支持,必须以同意的有效成立为前提.同意的效力一般会受到同意的能力、同意的范围、同意的基础、同意的内容等因素的影响.     

An Analysis of Hounsfield Unit Values and Volumetrics from Computerized Tomography of the Proximal Femur for Sex and Age Estimation

Sex and age are two elements in the establishment of a biological profile for forensic identification. While the pelvic bones are the most ideal structures for sex estimation, the condition of a body is not always ideal due to the nature of death, such as in mass disasters, or postmortem processes. This study utilized CT scans and resultant 3D models of 100 male and 100 female adults of known ages ranging from 18 to 98 years old to collect volumetric and Hounsfield unit measurements of the proximal femur. Equations were created to establish logistic regression models for sex estimation and linear regression models for age estimation. The resultant sex estimation method had an accuracy of 93.5% and utilized the volume of the proximal femur. This study provides three linear regression models for age with an accuracy range of 86%–92% ±12 years. As imaging technologies are increasingly adopted for forensic purposes, the power of 3D data will provide the opportunity for more quantitative and reproducible analyses. The proposed method for sex and age estimation provides a reliable tool that can be utilized in both day-to-day casework and disaster victim identification.     

The 2018 California Wildfires: Integration of Rapid DNA to Dramatically Accelerate Victim Identification

In November 2018, Butte County, California, was decimated by the Camp Fire, the deadliest wildfire in state history. Over 150,000 acres were destroyed, and at its peak, the fire consumed eighty acres per minute. The speed and intensity of the oncoming flames killed scores of people, and weeks before the fire was contained, first responders began searching through the rubble of 18,804 residences and commercial buildings. As with most mass disasters, conventional identification modalities (e.g., fingerprints, odontology, hardware) were utilized to identify victims. The intensity and duration of the fire severely degraded most of the remains, and these approaches were useful in only 22 of 84 cases. In the past, the remaining cases would have been subjected to conventional DNA analysis, which may have required months to years. Instead, Rapid DNA technology was utilized (in a rented recreational vehicle outside the Sacramento morgue) in the victim identification effort. Sixty-nine sets of remains were subjected to Rapid DNA Identification and, of these, 62 (89.9%) generated short tandem repeat profiles that were subjected to familial searching; essentially all these profiles were produced within hours of sample receipt. Samples successfully utilized for DNA identification included blood, bone, liver, muscle, soft tissue of unknown origin, and brain. In tandem with processing of 255 family reference samples, 58 victims were identified. This work represents the first use of Rapid DNA Identification in a mass casualty event, and the results support the use of Rapid DNA as an integrated tool with conventional disaster victim identification modalities.