刑法法律地位在司法中的具体运用——兼论“北大医院教授死亡”案

司法实务对刑法和其他部门法的关系提出了反思要求。刑法的适用,尤其是对行政犯的定罪量刑,必须处理好刑法与其他部门法之间的关系。这一关系取决于刑法成立部门法的理论基础。调整方式的特殊性是刑法成为部门法的理论基础,刑法调整对象的非独立性和刑罚的严厉性决定了刑法的广泛性、最后性和谦抑性,法律的指引作用以及法律的安全价值追究要求刑法必须与其他部门法保持一致。尽管如此,刑法与其他部门法的地位是平等的。刑法的独立基础和刑法与其他部门法之间的关系决定了刑法在法律体系中的地位。刑法在法律体系中的地位不仅影响着刑法制定,同时也对刑法的具体适用具有重大指导作用。     

论刑事推定的适用——以非法持有国家绝密、机密物品罪为例

刑事推定体现了经验法则与逻辑理性、利益衡平与诉讼效率以及法律强制与自由裁量等价值和意义。推定的适用包括表见成立和反驳两个环节,分别有其条件和法律效果。同时,应正视推定存在一定的缺陷,对其应有所规制。我国《刑法》对非法持有国家绝密、机密的文件、资料或者其他物品罪做了特别规定,即在认定该罪名时存在法律推定的适用问题,适用范围仅指对国家绝密、机密的文件、资料或者其他物品来源和用途非法的推定。     

论刑罚惩治毒品依赖行为的几个问题

吸毒作为一种国际性的社会问题,世界各国都对涉及毒品犯罪从刑法上给予严厉的打击。与之相比,我国对吸食、注射毒品行为的处罚显然失之于宽,失之于软。因此,刑罚惩治毒品依赖行为的要求日益凸显。现实操作中应注意:1.打击面不能过宽;2.识别所依赖的毒品种类;3.注意羁押中的毒品依赖人员人身和生命安全问题;4.罪名设置问题;5.刑罚设置问题。     

The Cybercrime Convention Committee's 2017 Guidance Note on Production Orders: Unilateralist transborder access to electronic evidence promoted via soft law

This article provides a critical analysis of the Council of Europe Cybercrime Convention Committee's Guidance Note of Production Orders, published on 1 March 2017. The article looks at the legal controversies surrounding production orders with a cross-border element. It explains the Guidance Note's background and origins, the basic provisions in the Cybercrime Convention allowing the law enforcement authorities to order and obtain certain information and discusses the requirements that follow from the relevant provisions of the Convention. This analysis is complemented by four critical remarks on the way the Guidance Note pushes the boundaries of acceptable treaty interpretation on the necessity of the Guidance Note, its position in regard to extraterritorial enforcement jurisdiction and sovereignty, its reticence towards fundamental rights and its refusal to define or clarify the important notion of “subscriber information”. The article argues that unilateralism is not a solution. Instead of soft law plumbing, what is needed is an agreement between sovereign states checked by their constituencies.     

Prison Recruitment as a Policy Tool of Local Economic Development: A Critical Evaluation

Like the sports franchises and foreign auto plants that preceded them, state and local governments are touting prisons as the latest means of economic miracle‐making, often for small towns and communities that are economically depressed. The building of prisons is supposedly tied to the development of a just, fair, and rational criminal justice policy in a civil democratic society. Prison building has positive and negative social and political consequences for these communities. This critical essay explores some of these consequences in light of the literature on prison siting, the experiences of communities and prisoners, and relevant statistical data in the public domain. It also offers an alternative framework for evaluating prison recruitment as a strategy for local economic development.     

Towards a common framework for assessing the activity and associations of groups who sexually abuse children

Abstract

Extensive social psychological research emphasises the importance of groups in shaping individuals' thoughts and actions. Within the child sexual abuse (CSA) literature criminal organisation has been largely overlooked, with some key exceptions. This research was a novel collaboration between academia and the UK's Child Exploitation and Online Protection Centre (CEOP). Starting from the premise that the group is, in itself, a form of social situation affecting abuse, it offers the first systematic situational analysis of CSA groups. In-depth behavioural data from a small sample of convicted CSA group-offenders (n =3) were analysed qualitatively to identify factors and processes underpinning CSA groups' activities and associations: group formation, evolution, identity and resources. The results emphasise CSA groups' variability, fluidity and dynamism. The foundations of a general framework are proposed for researching and assessing CSA groups and designing effective interventions. It is hoped that this work will stimulate discussion and development in this long-neglected area of CSA, helping to build a coherent knowledge-base.     

‘Done to death by father or relatives’: Irish families and infanticide cases, 1922–1950

In February 1929 the Bishop of Ossory commented on the fact that in Ireland illegitimate infants were often ‘done to death by father or relatives’ (Irish Catholic, 16 February 1929). There were many instances where family members of unmarried women who gave birth were the sole defendants or co-defendants in infanticide cases in post-independent Ireland. Although illegitimate infants were ‘done to death’ by their fathers in a number of cases that were tried at the Central Criminal Court in Dublin between 1922 and 1950, this article will focus on cases where infants were murdered or suspected of having been murdered by relatives of the birth mother both in the Twenty-Six Counties and in Northern Ireland (Irish Catholic, 16 February 1929). For the purposes of this article I have referred to the murder of illegitimate infants as ‘infanticide’ even though there was no separate charge of infanticide in the Irish Free State until 1949. The English infanticide acts of 1922 and 1938 also applied to Northern Ireland. This article discusses the motives of the relatives of single mothers who played a part in the deaths of illegitimate infants. Unmarried motherhood was severely frowned upon in Ireland and the relatives of single pregnant women assisted their female kin in destroying the evidence of extra-marital conception in order to protect the family's honour and moral reputation in the wider community. The records of infanticide trials provide a great deal of insight into the ways in which mainly working-class families dealt with the strain of pregnancy outside wedlock in Ireland between 1922 and 1950.     

Criminal Violence and Youth in Sweden: A Long-term Perspective

Since the mid-1980s, the Swedish public has become increasingly concerned about juvenile violence. This article confronts the public belief of increasing juvenile violence with systematic criminological data from crime statistics and other sources. Based on police and court statistics, as well as data from victimization studies and cause-of-death statistics, it is concluded that there is good reason to believe that Sweden is currently experiencing an 'enforcement wave' with regard to juvenile violence (particularly in the youngest age brackets), which reinforces the image of dramatic increases in the level of juvenile violence. The reasons why juvenile violence is thought to be on the increase even in the face of a lack of hard empirical evidence are discussed. Four long- and short-term trends are proposed as possible explanations: (i) the well-ordered modern society; (ii) the role of the mass media; (iii) the growth of feminine values; and (iv) the application of an offensive model of crime policy.     

Ex-Pirates in Somalia: Processes of Engagement,Disengagement, and Reintegration

This study addresses how and why individuals in Somalia get involved in piracy activities, and how and why some of these individuals eventually disengage from such criminal groups. Based on qualitative interviews with 16 ex-pirates and pirate associates and a number of other locals and experts, the study provides first-hand insights into some of the conditions, circumstances, and processes which may serve to discourage involvement and continued engagement in piracy. Furthermore, it analyses factors and circumstances which may encourage and facilitate disengagement from these criminal activities and reintegration into non-criminal economic activities and social relationships. The lack of employment and livelihood motivated individuals to engage in piracy. However, disappointment about the lack of expected profit, coupled with the prospect of a licit income, influenced some to end their piracy involvement. Another important factor was the strong statements by local Muslim leaders that piracy was haram (forbidden). This was often reinforced by family and community objections to their involvement in piracy. Family members also played important roles in facilitating their disengagement. The ‘Alternative Livelihood to Piracy’ project played a positive role in facilitating disengagement from piracy, working closely with local religious leaders and the communities.