非法获取计算机信息系统数据罪的规范结构与罪名功能——基于案例与比较法的反思

通过对非法获取计算机信息系统数据罪的案例法考察和域外法阐释,可以发现,其核心涵义指向侵犯数据机密性的情形和侵犯数据可用性的情形。其原因是机密性和可用性的规范结构导致该罪成为口袋罪:在罪名上,与人身安全、财产安全等多个章节的罪名产生交叉重合;在保护的利益上,不仅涵摄我国《刑法》其他章节所保护的法益,而且溢出整个刑法典,保护信息的时代重要性日益凸显、其他权益日益频繁地受到侵害。面对这种庞杂的规范结构,需要进行网络时代罪情、刑法基本原则的权衡考量,达致刑法规范的明确性与合理性。新的罪名标签“非法获取数据致损罪”,适应了双层社会虚实同构的态势、数据和利益在双层空间不断协同的复杂行为模式,是在刑法规范中嵌入网络风险控制的法律机制,有助于系统完善网络风险的治理格局。     

Perceived human rights and support for new democracies: lessons from Mexico

Political elites in emerging democracies are likely to promise improvements on human rights. From an empirical perspective, however, emerging democracies tend to perform rather poorly in this domain. Given this tension between elite rhetoric and performance, it is important to examine the extent to which citizens in emerging democracies evaluate democracy and new democratic leaders' performance on the bases of their perceptions of respect for human rights. This topic remains largely unexplored and conventional wisdom suggests that economic satisfaction, not human rights concerns, drives individuals' support for democracy. We aim to fill this gap in the literature by investigating the extent to which specific and diffuse political support is related to individuals' perceptions of respect for human rights in the context of an emerging democracy. Taking advantage of two representative survey data sets from Mexico from 2003 and 2010, our empirical findings suggest that citizens are more likely to support their president, their government and democratization when they believe that human rights are respected. By examining the relationship between democracy and human rights protections at the individual level, our research is a pioneering effort to better explain the interaction between the prospects of democratic consolidation and perceptions of human rights.     

Understanding support for democracy in new and old democracies in the Americas: the role of democratic experience

This article develops and evaluates a set of expectations regarding the mechanisms via which democratic experience could shape support for democracy. In line with previous studies, one straightforward possibility considered is that experience with democracy fosters greater affective support for democracy, making citizens of old democracies more supportive of this regime independently of government performance and other characteristics. Another possibility considered is that democratic experience mediates the importance of performance assessments in citizens’ judgments about democracy, decreasing the importance of economic performance assessments, while increasing that of political performance assessments. Statistical analyses of public opinion data from 23 countries in the Americas indicate that the effect of democratic experience on support for democracy is not statistically significant. Rather, democratic experience conditions the effects of performance assessments on support for democracy. The evidence also supports the assertion that experience with democracy, and not economic development, is what conditions the effects of performance assessments on support for democracy.     

Is democracy the only game in town? Tension between immigrants' democratic desires and authoritarian imprints

This article borrows from the literature on transitional democracies to examine levels of support for democracy and non-democratic alternatives among immigrants travelling from partly and non-democratic countries to Canada. It evaluates how immigrants who grew up under authoritarian rule come to adapt to democracy. The findings indicate that immigrants from partly and non-democratic countries experience tensions in their adaptation to democracy, expressing strong democratic desires but also manifesting what could be interpreted as lasting imprints of their socialization under authoritarian rule. Immigrants from partly and non-democratic countries exhibit strong support for democracy (they almost all believe it is a good form of government, the best one, and understand democracy in broadly similar terms as the rest of the population). Yet, if democracy is the main game in town for the immigrants, it is not the only one; immigrants from partly and non-democratic countries are significantly more likely than people socialized in a democratic political system to support other forms of governments that are non-democratic. The article thus argues for the lasting impact of authoritarianism on people's democratic outlooks despite the presence of strong democratic desires.     

How well ordinary citizens understand democracy: the case of the South Korean electorate

How do mass citizens understand democracy? Are they capable of distinguishing it from its non-democratic alternatives? Does their understanding about democracy matter? To reveal the contours of cultural democratization in South Korea, this article addresses these questions largely overlooked in earlier survey-based studies. Analyses of the 2010 Korea Barometer survey indicate that all segments of the Korean electorate, including the young and the college-educated, are neither accurately nor fully informed about what distinguishes a democratic regime from its non-democratic alternatives. Moreover, the study provides strong evidence of democratic learning in that an increase in democratic knowledge leads to committed support for democracy. The findings together imply an urgent need to improve the quality of civic education for the development of democratic political culture in Korea and new democracies.     

Gender and Professional Values in the Criminal Bar

ABSTRACT

This study is a theoretical application and empirical test of difference theory in the context of private criminal law practice. Difference theory posits that gender is associated with variation in perspectives on justice and morality, and examination of mainstream professional values in the legal system reveals those values to emphasize what are thought to be masculinist values. Hence it is hypothesized that female lawyers will depart from male norms in their expressions of professional values. Results of a survey of practicing lawyers reveals limited support for these theoretical predictions; although male respondents express more extreme advocacy of due process and defendants' rights, women and men differ little in their attitudes toward punishment issues and cynicism regarding defendants.     

论我国紧急状态法制的实现条件与路径选择——从反思应急法律体系切入

紧急状态法制对于解决宪法上紧急状态制度的虚置问题,推动应急基本法的结构性调整,填补应急法律体系中的制度断层,提升其体系内部各个层次、各个相关条款之间的融贯性,有着十分紧迫的现实意义。经过理论条件和现实障碍的细致论证,可以推导出我国紧急状态法制的实现条件极为特殊,寄希望于短期内制定一部统一的《紧急状态法》似乎不具备可行性。从完善应急法律体系的整体考量,可以将紧急状态法制的任务一分为二,按照实体分散和程序统一的思路分别展开实质性构建,同时发挥“情境化”规范进路的聚合效应,打破分散的形式结构体系,在超常规应急治理(紧急状态)情境中实现规范内容的实质统一。     

APPLYING A GENERAL STRAIN THEORY FRAMEWORK TO UNDERSTAND SCHOOL WEAPON CARRYING AMONG LGBQ AND HETEROSEXUAL YOUTH

Lesbian, gay, bisexual, and questioning (LGBQ) youth are at a higher risk for school victimization, social isolation, and school weapon carrying compared with their heterosexual peers, yet few studies have been conducted to investigate their experiences. By using a general strain theory (GST) framework, data from the Youth Risk Behavior Survey (YRBS) statewide probability sample of Delaware heterosexual (n = 7,688) and LGBQ (n = 484) youth in grades 9–12 show that there are both similarities and differences in the factors associated with school weapon carrying among LGBQ and heterosexual youth. LGBQ and heterosexual youth's weapon carrying is related to school victimization, but social support does not moderate the relationship between school victimization and school weapon carrying as suggested by GST. Furthermore, being male is significantly related to heterosexual youth's weapon carrying, but sex is not related to weapon carrying among LGBQ youth. Overall, the results highlight a need to reconceptualize GST to help center the experiences of LGBQ youth, a historically marginalized group, within mainstream criminological literature. Theoretical and policy implications are discussed.     

Polygamy In Family Court: A Resource For Judges Dealing With An Unfamiliar Family Structure

Cases concerning polygamous households can present difficult challenges for family courts. Though a growing number of Americans practice polygamy, the lifestyle still remains shrouded in mystery. Many polygamists are religious (and sometimes racial) minorities that have suffered from discrimination. The most influential judicial precedents concerning polygamy come from the nineteenth century and are tinged with religious and racial stereotypes, which can make judges uncomfortable with citing those decisions. There is a need for reliable, unprejudiced, and up‐to‐date information about polygamy that judges can cite while maintaining an image of objectivity and impartiality. This Article seeks to provide that resource. It provides information about the evolutionary influences that shape polygamy, how polygamy is practiced in the modern world, and common problems affecting polygamous households that judges should be aware of.     

Performance characteristics of commercial Y-STR multiplex systems

In this work, a number of performance checks were carried out to evaluate the efficacy of commercial Y-short tandem repeats (Y-STR) kits for casework applications. The study evaluated the sensitivity, specificity and stability of the Y-STR markers used and the ability to obtain a male profile from postcoital samples taken at various time points after intercourse. All systems performed well with 1-3 ng of male DNA as recommended by the manufacturers. All systems gave full profiles at 100 pg of input DNA, which is within the realm of low copy number DNA analysis. Moreover all, except Y-Plex12, gave full profiles with 30-50 pg of male DNA. No increased performance was obtained with any of the systems by increasing the cycle number beyond that recommended by the various manufacturers. When up to 1 microg of female DNA was used (in the absence of male DNA) no female DNA cross reactivity was observed with the Y-Plex 12 and Y-Filer systems. PowerPlex Y produced female DNA derived products near the DYS438 and within the DYS392 loci at a rare allele position with high input DNA levels (300 ng and 1 microg, respectively). Male/female DNA admixture experiments indicated the particularly high specificity of the Y-Filer and PowerPlex Y systems under conditions of several thousand fold female DNA excess. All systems were able to detect the minor alleles in male/male DNA admixtures at a 1:5 dilution with the PowerPlex Y and Y-Filer being able to detect some minor alleles at 1:20. Species testing indicated some limited, minor cross reactivity of the commercial systems with some domestic male mammals although it is easily recognizable and would not pose any problems in casework analysis. As expected a significant number of cross-reacting products were obtained with nonhuman primate species. All Y-STR multiplex systems tested were able to produce complete Y-STR profiles from bloodstains and semen stains exposed up to 6 weeks when the samples were protected against precipitation and sunlight. However, exposure of the samples to precipitation either in the presence or absence of sunlight resulted in Y-STR profile loss over time, with total profile loss occurring with all systems after 3 weeks or more. Complete Y-STR profiles of the male donors up to 72 h postcoitus were obtained with all of the multiplex systems tested, except for Y-Plex12, which gave partial profiles.