论“受委托”型贪污罪主体

关于贪污罪的构成特征尤其是贪污罪主体的范围一直是我国刑法理论界及司法上争论的热点,我国现行<刑法>第382条第2款规定的"委托"应只包括对国有资产的"承包"与"租赁"两种形式,不包括"聘用"形式;刑法意义上的"委托"既不同于民事委托,也不同于行政委托;该款中的"管理"、"经营"符合从事"公务"的两个判断标准,因此其具有从事公务的法律性质;对国有资产的承包、租赁可按承包与租赁者人数划分为四种类型,"受委托"人员的范围在不同类型中,其确定的原则也不尽相同;"受委托"人员不属于我国<刑法>第93条规定的国家工作人员的范畴.     

论人民检察院在违法行为教育矫治工作中的职能——以劳动教养制度为视角

人民检察院是我国宪法规定的专门法律监督机关,目前由于缺乏相关规定,人民检察院对违法行为教育矫治措施缺乏有力监督。根据《刑事诉讼法》、《人民检察院组织法》的规定,对限制人身自由的执法活动进行监督是人民检察院的法定职责。人民检察院对公安机关的劳动教养权力行使进行有效的检察监督,需要完善法律规定,并在监督内容上和监督程序上加以详细规定。     

The Aporia of Collective Violence

From the theoretical perspective of René Girard, Walter Benjamin and Jacques Derrida the Rwanda genocide of 1994 may be interpreted as an instance of foundational violence. Given the constant reference in the Rwanda genocide discourse to the failed revolution of 1959, it is perhaps rather a case of deferred foundational violence. Useful as this notion of ‘foundational violence’ may be, as theoretical category it is also hugely challenging because the implicit claim is not just historical (‘states are routinely founded on violence’) but analytical (‘founding moments are per definition violent’). The result is a profound tension between, on the one hand, the need to understand the event as somehow unexceptional or typical of the founding of new socio-political orders and, on the other hand, the need to judge it as exceptional, an ‘outrage’, a crime against humanity. This paper treats the tension between the unexceptional and exceptional as aporetic, that is, as a profound puzzle consisting of two equally valid imperatives which are nonetheless mutually exclusive. It is also an attempt to find a way beyond the impasse.

The Queensland Health Royal Commissions

Utilisation of public inquiries and royal commissions in Westminster systems of government is a source of continuing interest. That royal commissions continue to be appointed when there is an increasing array of other institutions governments can now employ and given that royal commission reports often have very adverse impacts on the appointing governments, remains a key issue. So the appointment by the Queensland government of not one, but two royal commissions in 2005 into the same topic – the recruitment and performance of doctors recruited abroad working in Queensland public hospitals – provides a special opportunity to analyse the circumstances in which a royal commission mechanism is activated. That one of these royal commissions had to be disbanded because of legal action taken by several of those being investigated is another reason to assess these royal commissions. This is almost without precedent in Australia and has implications for the future conduct of such bodies. Lastly, how the Queensland government was able to minimise the blame from the subsequent royal commission's highly critical report, is also instructive and worthy of assessment .     

Towards a Model Public Sector Integrity Commission

This article examines the current debate in Australia about public sector integrity and the idea of a standing anticorruption commission. From this debate the article outlines a specific type of ‘public sector integrity commission’ that in principle should have the necessary powers and techniques at its disposal to minimise corruption while ensuring efficiency and fairness. The debate has been most active in jurisdictions that have not had an anticorruption commission – mainly in Victoria, South Australia and Tasmania – but debate about integrity commissions has occurred in all jurisdictions. The authors argue that anticorruption commissions are essential to ensure the integrity of the public sector and that a model commission should: cover all elements of the public sector; independently investigate serious and mid‐level complaints; have own motion powers to investigate any matter; have summary authority to apply administrative sanctions; make use of a range of investigative tools; not be tasked with combating major and organised crime; and be held accountable to citizens through a parliamentary committee and a parliamentary inspector.     

商业贿赂罪之刑法本体界定

商业贿赂首先是一个经济法上的概念,然后才是一个刑法上的概念,必须区分经济法上的商业贿赂和刑法上的商业贿赂。商业贿赂犯罪是市场经济发展到一定阶段的必然产物。商业贿赂犯罪是对发生在经济领域中的贿赂犯罪的集合称呼,它包括一系列具体罪名,而不是仅仅指公司、企业人员贿赂犯罪。     

论监察调查中的非法证据排除

《中华人民共和国监察法》确认了监察机关依法收集的证据在刑事诉讼中可以作为证据使用的法律地位,同时规定“监察机关在收集、固定、审查、运用证据时,应当与刑事审判关于证据的要求和标准相一致,以非法方法收集的证据应当依法予以排除”,表明了监察机关对职务犯罪的调查所收集的证据必须符合证据裁判原则。随着中国特色社会主义法治进程的不断推进,不难预见,在今后监察委员会移送检察机关提起公诉的案件中,遇到被告人提出非法证据排除的案件可能会越来越多。为积极应对这一突出问题,本文就监察调查中排除非法证据的现实意义、法律适用、非法言词证据及非法实物证据排除规则进行阐述,进而提出有效应对举措,确保监察调查取得的证据符合刑事诉讼证据标准,实现监察调查与刑事司法有效衔接。     

Public Outrage,Media Spectacle and the Kapunda Road Royal Commission

The article focuses on the relationship between the executive and the judiciary in respect of a legal case that provoked public outrage. This outrage entered into the media spectacle and was channelled by the executive into calling a royal commission. The royal commission was charged with re‐examining the police actions and the legal case. However, hidden behind its narrow terms of reference was the larger question of justice being ‘blind’ to a network of privilege. As such, the royal commission had the potential to threaten the independence of the judiciary.     

物流企业质押监管业务的法律分析

物流企业所提供的质押监管业务是中国近年来快速发展的由商业银行借助物流企业的服务能力而开发的新型的动产担保模式。根据业务实践,归纳出三种类型的质押监管模式,重点对输出质押监管合法性及内在缺陷进行了探讨,分析了物流企业的义务与责任:物流企业的身份是委托法律关系下的受托人,代表银行占有质物,实现质权的设定与存续,在输出监管模式下,物流企业通过"共同控制、共同占有"的方式实现质权的设定与存续;保管义务是物流企业所承接的质权人——银行的法定义务,仅存在于自营仓库内的质押监管业务;物流企业对银行承担监管、受托义务,并对因其过错给银行造成的损失承担相应补充责任。     

The Commission of Historians in Latvia: 1999 to the present

In 1999, the President of Latvia, Guntis Ulmanis, created a Commission of Historians and charged it with investigating the nature and consequences for Latvians and Latvia of the two occupations (the Soviet Union and Nazi Germany) the country experienced during the years of World War Two and afterwards. Special focus was to be direct to the Holocaust and to the multiple forms of repression practiced by the Soviet Communist regime. The Commission consisted of some 13-15 local, regional, and international scholars with specialized knowledge and, in some cases, personal experience, with the double occupation. The findings of the Commission were to be published in the form of a book series, with each volume devoted to a particular topic and containing reports delivered at international conferences or generated by ongoing research. The historical knowledge thus accumulated was to be disseminated widely, in the hope that it would become a basis for further research on this crucial and still-controversial period of Latvian history. A quantitative analysis of the twenty-seven Commission volumes published to date offers a capsule view of the Commission’s research efforts and research strategies, describes the subjects covered so far, and summarizes some of the criticism attracted by the Commission as well as its contributions to the sum total of Latvian history.