单位直接故意犯罪形态的几个问题探析

单位犯罪的构成形态特征与自然人犯罪的构成形态特征相比,有着明显的不同。我国刑法学界对这一内容论述的较少。本文通过分析单位直接故意犯罪的主、客观要件,对单位直接故意犯罪中的犯罪未遂形态、犯罪中止形态认定时应当注意的几个问题进行了初步的分析和探讨。     

律师保密义务的经济学探析——海派经济学的法学观点

本文属于法律经济学的研究范畴,试图以经济学方法探讨律师保密义务在确保公正的前提下可能出现的效率问题,从而分析这项制度安排的合理性。文章通过对两者涉及的各相关主体进行以“成本收益”分析为核心的行为分析,发现流行的律师保密义务理论和措施无法在较低的私人成本、社会成本支出水平上实现司法收益的最大化,即这项制度导致了司法资源配置的低效率。     

单位贿赂犯罪之检讨

我国刑法把单位贿赂犯罪从自然人贿赂犯罪中独立出来,单独加以规定,并对之做出了与自然人贿赂犯罪不同的规定。这些规定反映单位贿赂犯罪特殊性,同时导致了某些规定与刑法惩治贿赂犯罪基本精神的背离和罪刑关系的不协调,司法解释中也存在着对单位认定标准理解不当的问题。     

刑事代理制度的理论基础

刑事代理作为一项法律权利 ,具有利他性、权能性和自由性的属性。作为一项诉讼制度 ,它是刑事诉讼实体正义、程序正义 ,提高刑事诉讼效率的必然要求     

刑事立法效益原则的经济性解读

刑事立法主体所追求的目标是通过投入一定量的时间、人力、物力和财力,设置刑法规范,使该规范在现实生活中发挥最大的作用,以期达到其以最小代价换取最大可能的社会和平与和谐的目的。刑事立法活动中的效益取向,是立法理念的嬗变与进步,是我国社会经济发展的历史必然,也是法本身的正当性要求。刑事立法活动的经济性因素具有可预测性、可控制性和可节省性。刑事立法对效益原则的遵循,其价值体现在社会、经济和法律等关系到立法本质的宏观层面。     

论经济行政法的效率导向——从经济分析的角度研究

从经济分析的角度看,经济行政法应以实现资源配置的帕累托效率为导向。这是因为经济行政主体干预经济的理由在于克服市场失灵,实现资源配置的帕累托效率。但是由于存在公共失灵的问题,经济行政主体难以实现其效率的目标,需要经济行政法对经济行政权力进行控制,以便克服公共失灵的问题,因此经济行政法存在的理由在于通过控制经济行政主体的经济干预行为来促成社会资源配置的帕累托效率状态,其必然是效率导向的。     

改革警检关系提高侦诉效率

公安机关的侦查与检察机关的起诉,是刑事诉讼中前后衔接的程序,它们的高效运作对法院审判乃至于整个刑事诉讼,都起着至关重要的奠基性作用。由于警检关系立法定位存在一定的缺陷,使得侦诉程序基本处于分离、牵制的状况,降低了审判前程序的诉讼效率,改革势在必行。但是改革不能脱离了现行的法律制度与司法状况,因此,既要确定改革的长远目标,从宏观立法和诉讼构造上实行变革;同时,现阶段也不能放弃改革警检关系的努力,可以在不改变法定诉讼体制构造的前提下,通过加强公安与检察机关的相互沟通,创设和完善一些形成侦诉合力的有效措施,从而提高诉讼效率。     

虚开增值税专用发票罪认定中的几个疑难问题

虚开增值税专用发票罪,在司法实践中存在比较大的争议:一是多人分别实施虚开与骗税行为如何适用刑法第二百零五条第二款;二是虚开数额的认定;三是虚开增值税专用发票罪与其他相关犯罪的竞合问题;四是单位和自然人构成虚开增值税专用发票罪的认定。     

刑事合规试点模式之检视与更新

我国检察机关目前对于民营企业犯罪探索建立的刑事合规制度具有积极的社会引导意义,但在发端背景、合规互动结构、案件适用范围、法源及合规强度等方面存在不足,可能影响刑事合规的适用效果。通过改造我国刑法中关于单位犯罪归责原理的路径来达到刑事合规扩大适用是不经济的。我国民营企业的刑事合规建设需要避免合规概念的泛化,通过区分犯罪类型、细分企业规模及控制合规成本等方面的细致设计来激发企业建立合规体系的内驱力。外部监管方面应通过更新监管理念来获得行政监管机构对企业合规建设的协同,可以试点先行延长合规考察期限。     

Actions by Political Officials Have Weakened the Federal Government Workplace: Downsizing Has Cut Lower Level Workers the Most and Replacing Federal Employees with Private Corporations Costs Much More,Creating the Need for Immediate Reform

Abstract

The authors of this paper are four practitioners each of whom has many years of experience working in the Federal government and also has pursued doctoral studies in public or business administration. Three ideas developed in this paper are that: (1) the Federal civil service has been changed from being a model workplace to a much less desirable one; (2) although downsizing has been touted as an efficiency and economy measure, lower level employees experienced the most cuts and (3) the current practice of replacing Federal employees with private corporations costs much more. Over the past two decades private sector workplaces in the United States, and now the Federal government workplace, have experienced so much change that previous theories, concepts, models, and expectations no longer hold. Just as private industry workplaces have been changed by downsizing, reorganizations, mergers, elimination of middle management, and outsourcing, so, too, has the Federal government workplace been fundamentally altered. Reducing the number of government workers, replacing Federal employees with private firms, increasing the number of officials with political agendas, and using harsh personnel management practices have transfigured the Federal workplace. Examples of factors that have contributed to a changed workplace include: the Civil Service Reform Act which replaced the Civil Service Commission with the Office of Personnel Management; importing private sector approaches into the government, e.g., the Grace Commission; replacing the Civil Service Retirement System with the Federal Employees Retirement System; pressure to downsize and privatize; and many elements of the National Performance Review and Government Performance and Results Act. Now that the metamorphosis away from the traditional Civil Service borne of the Pendleton Act is nearly complete (although the new paradigm is not entirely clear), questions about the effects of a changed government workplace are being raised. Some people believe the metamorphosis is from a caterpillar to a butterfly, while others think the opposite. Whether the changed Federal government is a thing of beauty or a distasteful organism will be determined over time by observations and assessments of the effects of the change. These effects will be both internal to the government workplace, itself, and external to it, involving the products, services, outputs, and outcomes it produces. This paper begins by describing some of the politically mandated changes that have altered the very foundation of the Federal government workplace over the past 20 years and made it a much less desirable place to work. Next, some of the effects of two politically mandated changes are examined: (1) downsizing or reducing the number of Americans who can work for their government and (2) contracting out or replacing government workers with private corporations. Political officials have told the media and the American public that these changes were needed to improve the government's efficiency, effectiveness, and economy. It has been suggested that these initiatives will reduce costs. However, an examination of downsizing and contracting out shows the opposite effect. While overall the Federal government has fewer employees now than in 1961, the statistics indicate that lower level employees have been cut the most:

• The number of secretaries decreased by 39% between 1992 and 1998.

• The blue collar workforce is down 40% since 1982, e.g., Supply Clerical and Technician (?35%), Accounting Technician (?24%), and Electronics Mechanic (?41%).

• Between 1993 and 1998 the number of GS‐1 to GS‐10 employees fell from 767,000 to 594,000.

• In 1983 the number of GS‐1 to GS‐10 workers exceeded GS‐11 to GS‐15 by nearly 300,000, while in 1997 GS‐11 to GS‐15 outnumbered the lower level workers by 44,000.

Although authoritative cost comparison studies are difficult to conduct because top officials have made little provision to collect information on the cost of contracting with private firms or the number of contract employees, available information indicates that it is much more expensive than using government employees. The contracting out we are talking about is not the usual kind—building ships or planes, or acquiring computer systems or special expertise not available in the government. Rather, it is contracting with private firms to do jobs that are currently being performed by Federal employees. Not satisfied with the level at which firms are being substituted for Federal employees, actions by political officials have created an environment which now favors private corporations and where they can be given work at top management's discretion, often regardless of cost. In fact, today most contracting out is done without the use of Circular A‐76 Cost Comparison Studies. There is empirical and logical evidence that shows that replacing government employees with private corporations is more expensive. For example, a study by the Department of the Army documents what people close to contracting have always known—that it is far more expensive to contract with a private firm for work than to have Federal employees do it. Logically, the government incurs additional items of cost when replacing Federal employees with private corporations. First, there is the profit that goes to the firm. Second, there is the firm's overhead which pays for corporate offices, staffs, and CEOs. Third, there are the costs of the contracting and award process and of contract administration and management. Although the worker on a government contract may be paid a little less than a government worker, the cost of the worker is only a third to a half of what the government pays the firm. Thus, replacing government workers with private firms usually costs far more and it is not unusual for it to cost two to three times as much. This paper partly is based on the authors' long experience in the Federal government. It is not based on the organizations in which they are currently employed.