浅谈建立刑事被害人国家刑事补偿制度

我国《刑事诉讼法》第77条规定．“被害人由于被告人的犯罪行为而遭受物质损失,在刑事诉讼过程中,有权提起附带民事诉讼。”在司法实践中,依法提起附带民事诉讼的被害人数量不少,然而获得实际赔偿的比例却不高。由于受到被告人赔偿能力的限制,有的被害人获得的金额极小,与其所受的巨大损失形成强烈反差。有的被害人甚至是空持判决书,实际分文未获,这种情况在群死群伤的恶性案件中尤为突出。因此,建立刑事被害人国家补偿制度已迫在眉睫。     

Kim Pate

Abstract

This essay provides an overview of the life of Kim Pate, a Canadian activist who works with and on behalf of criminalized women and girls. Highlights of Kim's commendable personal, occupational, political and academic contributions and achievements in both Canada and abroad are presented. Featuring pivotal occupational achievements in Kim's life simultaneously offers a glimpse into the state of affairs in the past decade facing women in Canada's criminal justice system. This essay is based on interviews held with Kim, her colleagues and friends, and my personal acquaintance with her. It brings to life how Kim has and continues to challenge and progress the Canadian criminal justice system as an activist, and how her success is rooted in her extraordinary character as an individual.     

Gran Torino

Given the current constellation of fiscal, moral, and logistical problems facing its corrections industry, the USA is on the cusp of a widespread penal reform movement. For the past 200-plus years, each US penal reform that intended to diminish penal practices resulted in widening the reach and deepening the roots of the nation’s punishment system. The question asked here is: is the restorative justice movement in the USA headed the way of past benevolent penal reforms? A new type of social movement: the regressive social movement model is presented. Three past benevolent penal reforms – the penitentiary, the adult reformatory movement, and parole are dissected in order to formulate a regressive reform profile and tested against the restorative justice movement. Field research finds that a repeat performance of regressive reform is in progress. In each of the eight restorative justice movement, variables demonstrate characteristics evident in past benevolent penal campaigns, resulting in a redirection of the campaign’s course.     

Incapacitation and imprisonment: prisoners' involvement in community-based crime

Abstract

The impact of incapacitation on prisoners' offending behaviour is a neglected area of research. The aim of this study was to examine the extent and nature of prisoners' involvement in community-based crime in the UK. Participants were selected from nine prisons in the UK and consisted of 360 prisoners, 81 females and 279 males. Offenders were interviewed to assess levels and forms of involvement in community-based crime and perceptions of other prisoners' involvement. Levels of prisonization and institutional and demographic characteristics were used to identify vulnerability to involvement in community-based crime. Twenty-five per cent of the sample admitted personal involvement and 63% reported other prisoners' involvement in a diverse range of crimes. Analyses revealed prisoners involved in community-based crime are likely to be young, male recidivists who hold prisonized attitudes. Prisoners who are white, prisonized and recidivist reported highest levels of other prisoners' involvement in community-based crime. No age or gender differences delineated prisoners' reports of others' involvement. The results show that incarcerating offenders may not prevent their involvement in community-based offending. Discussion centres on the characteristics of involved prisoners and considers the implications of the results for rehabilitation and penal policy.     

广义刑事政策视角下的刑事政策横向结构分析

刑事政策的横向结构是指刑事政策体系内各分系统之间的关系。刑事政策的分系统是指刑事惩罚政策和社会预防政策。刑事惩罚政策是指国家机关运用刑事法律与违法犯罪作斗争的一切手段、方法和措施,包括刑事立法政策、刑事司法政策和刑事执行政策。刑事立法政策是指在刑事立法中的策略、方针和原则,是刑事立法的灵魂。刑事司法政策是指导刑事司法实践的具体指导思想和策略原则。刑事执行政策是指导刑事执行实践的具体指导思想和策略原则。当代刑事惩罚政策已经出现了犯罪化与非犯罪化和轻刑化、非监禁化和行刑社会化以及两极化的发展趋势。社会预防政策是指直接或间接地对犯罪的控制和预防产生影响的具体措施、策略和方法。社会预防政策可以分为宏观预防政策与微观预防政策。在社会转型期,社会预防政策也应进行合理的调整。     

行刑社会化法律问题研究——以罪犯教育改造为视角

罪犯教育改造社会化是监狱行刑发展的必然,它在推动刑罚执行社会化发展方面具有重要的作用。但是,要真正使这项工作规范运行,还应从法律和制度本身着手,发动社会各方面的力量共同努力,才能使罪犯教育改造社会化工作上新的台阶,以提高教育改造质量,实现法律制度的最大价值。     

Media and Punitive Populism in Argentina and Chile

Punitive populism is common throughout Latin America. It involves political and public opinion support for more police officers, greater police autonomy, and tougher laws to punish crime—options that often perpetuate old police practices and resist police reform efforts. This article critically examines the role of the media in fostering punitive populism by examining the sources used by journalists. Comparing the ‘most different’ cases of Argentina and Chile and drawing on interviews conducted from 2009 to 2015, I argue that the choices made by journalists regarding their sources are affected by neoliberal media policies in a particular way that favours tough‐on‐crime discourses.     

Just compensation: a no-fault proposal for research-related injuries

Biomedical research, no matter how well designed and ethically conducted, carries uncertainties and exposes participants to risk of injury. Research injuries can range from the relatively minor to those that result in hospitalization, permanent disability, or even death. Participants might also suffer a range of economic harms related to their injuries. Unlike the vast majority of developed countries, which have implemented no-fault compensation systems, the United States continues to rely on the tort system to compensate injured research participants—an approach that is no longer morally defensible. Despite decades of US advisory panels advocating for no-fault compensation, little progress has been made. Accordingly, this article proposes a novel and necessary no-fault compensation system, grounded in the ethical notion of compensatory justice. This first-of-its-kind concrete proposal aims to treat like cases alike, offer fair compensation, and disburse compensation with maximum efficiency and minimum administrative cost. It also harmonizes national and international approaches—an increasingly important goal as research becomes more globalized, multi-site trials grow in number, and institutions and sponsors in the United States move to single-IRB review.     

违约金功能定位的反思

基于对违约金约定数额过高会导致债权人不当得利之担心,违约金被解释为赔偿性,并允许债务人申请酌减。这样的解释并无逻辑与实质根据,赔偿性违约金并非恢复违约金约定实质自由的适合工具。从当事人意思自由出发,惩罚性违约金才是本来意义上的违约金,主要发挥履约担保的功能,是原给付义务,是主给付义务的从义务,而与作为损害赔偿额之预定的赔偿性违约金不同。因此,违约金的酌减规则不应仅考虑实际损害的大小,而应根据债权人的担保目的予以判断,由此形成当事人之间的实质平衡。     

Effective Detention: The Development of a Policy

The Dutch Prison Service developed a new policy on indoor employment programmes. The development of this policy, the definition of these programmes and the chosen methodology of Individual Employment Counselling is described. Also some examples of good practice are given. We learned a great deal from good practice, from external advisors, from co-operation with partners like employers, probation services, local authorities and from comparable programmes in other European countries. The development of these programmes was supported by changes in the prison service, economic growth in the Netherlands, a new employment policy initiated by the Dutch government, and by sub-financing of the European Social Fund. Future challenges are: better matching of prisoners (their motivations, their capacities and handicaps) with the programmes, further development of co-operation with partners and the implementation of a good monitoring system.