专家、利益集团与公共参与

公共参与制度在行政决策中方兴未艾,而专家咨询机制也愈显重要。在公共参与背景下,公众与专家的角色定位及功能作用亟需反思。纷繁复杂的公共参与理论基础直接影响到专家咨询制度的定位、功能与运行。美国专家咨询制度的经验和教训,为完善我国专家咨询制度提供了借鉴。法治化、型式化、竞争化、公开化是完善我国专家咨询制度的应有取向。     

论国际人权法对国际刑法的影响

冷战结束后,国际人权法获得了较为广阔的生长空间,国际刑法也进入复兴和快速发展的阶段。国际人权法对国际刑法各个领域的影响都十分明显,从基本原则到具体规则,从实体法到程序法,从刑罚制度设计到刑罚的执行,并努力在保护被害人与保障被告人权利两者之间保持微妙的平衡。然而,透过国际人权法推动国际刑法发展的帷幔,不难发现其背后＂人权＂和＂主权＂之间的紧张博弈：为保护人权,国际人权法引领着国际刑法试图突破国家领土的藩篱进而穿透国家主权的坚硬＂铠甲＂;国家则奋力祭起＂主权＂大旗并诉诸＂司法独立＂的坚固盾牌,抵御某些外部政治实体利用国际刑事司法机构干涉其内政、侵蚀其＂司法独立＂,以最大限度地维护国家利益。     

社会舆情与刑法运作互动问题研究

随着信息传播的便利,社会舆情可以对刑事裁判的整个过程产生影响。在社会舆情和刑事司法发生冲突的案件中,社会舆情"屡战屡胜",表面上看好似是"公意的胜利",而实质上依然是"正义的胜利"。因为被推翻的刑事判决本身,在法律依据、诉讼程序、定案证据等方面存在各种各样的瑕疵或错误。为了实现刑事司法的公众认同,维护刑事司法的权威性,刑事司法应当做到三点:坚守刑事司法的正当性;加强判决书说理;增强对社会公意的理解。     

Rights in Criminal Law in the Light of a Will Theory

The will theory of rights has so far been considered incapable of capturing individual rights under criminal law. Adherents of the will theory, therefore, have defended the claim that criminal law does not assign rights to individuals. In this article I argue first, that criminal law does assign individual rights and second, that the will theory of rights may enhance our understanding of these rights. The two major implications of the account are: a volenti non fit iniuria principle for criminal law, and a theoretical framework for an idea of punishment as restitution.     

Family Group Conferencing and Re‐Offending Among First‐Time Juvenile Offenders: The Indianapolis Experiment

Restorative justice processes, and family group conferences in particular, have become increasingly common in justice system practices across the globe. There has also been significant scholarly interest. Yet, with several notable exceptions, much of the research has been characterized by relatively weak designs, and questions related to the impact of family group conferences on re‐offending remain unanswered. This research is intended to begin to address these issues. The study is based on an experiment conducted in Indianapolis, Indiana whereby young, first‐time‐offending youths were randomly assigned to either a family group conference or one of a number of court‐ordered diversion programs. Nearly 800 youths participated in the experiment, and the cases were tracked for 24 months following their initial arrest. Survival analysis techniques were used to compare prevalence patterns of re‐offending among the treatment and control groups. The results indicated a significant difference between the two groups with the control group experiencing higher rates of failure (re‐offending). The differences were most pronounced during the period of 3–8 months following the initial arrest. Incidence rates were also compared. Assignment to the treatment group was negatively related to incidence of offending. Given the consistent finding of victim benefits in restorative justice processes, the results suggest that conferences hold promise as an effective intervention, at least for young first‐time offenders, and warrant continued experimentation.     

Career Dimensions of Stalking Victimization and Perpetration

Prior literature concerning stalking, particularly in the field of criminology, finds wide variation in fundamental trends regarding stalking victimization and perpetration. There seems to be little consensus regarding when and how stalking is manifested. Furthermore, prior research to date has not addressed the etiology of stalking‐related behaviors by applying principles from criminal career research, including participation, frequency, onset, and duration. The present study builds upon prior research by addressing trends in age of onset for stalking victimization and perpetration, the duration of stalking‐related behaviors, and the relationship between those behaviors and other types of crime over the life course using primary data from a sample of young adults. Findings indicate that stalking victimization and perpetration share important career attribute similarities, and that self‐reported history of intimate partner violence and sexual assault are strongly associated with stalking outcomes.     

Prevalence and Characteristics of Co‐Offending Recruiters

Previous examinations of co‐offending have identified a subset of high‐rate offenders who commit crimes with a large number of co‐offenders, most of whom are younger and less criminally experienced. These so‐called “recruiters” are of particular interest to researchers and practitioners, because of their potential role in facilitating offending onset and recidivism among their co‐offenders. In this paper, data on 61,646 individuals detected by a large UK police force are used to identify offenders who fitted the recruiter profile, and to compare their individual and offending characteristics with those of non‐recruiters. In total, 86 recruiters were identified. In multivariate analyses, recruiters were found to be older than non‐recruiters and were typically involved in property crimes. In addition, they tended to offend in criminal groups that were more heterogeneous and stable than non‐recruiters. These findings suggest that a small but identifiable group of recruiters can be detected using official data and that these individuals may be important targets for police attention and court treatment.     

Opening the Black Box of Officer Decision-Making: An Examination of Race,Criminal History,and Discretionary Searches

Recent evidence suggests that police officers engage in discretionary searches of minority citizens at a disproportionate rate; however, the impact of citizen criminal history on this relationship is largely unknown. Using the theoretical framework of officer suspicion, this study examines the impact of citizen race on the likelihood of a discretionary search and whether this relationship is mediated by citizen criminal history. A series of multilevel models were computed on officer-initiated traffic stops in a manner that conforms to Baron and Kenny's recommendations to test for mediation effects. Results indicated that while citizen race was predictive of a discretionary search, this effect was mediated by consideration of criminal history. These findings have implications for understanding the decision-making process of officers, the influence of citizen race on these decisions, and the role of officer suspicion in police-citizen encounters.     

打击犯罪与保护人权的艰难平衡——评刑诉法修正案中侦查程序部分中的争议问题

现行刑诉法自 $141 年制定后于今迎来了第二次大面积修改。针对此次修改,尤其是对有关侦查程序的修改,有人忧虑其是刑诉法条款倒退的表现。通过对秘密拘留和逮捕、传唤和拘传时间的延长、技术侦查措施的引入和沉默权与如实供述这四个方面进行理性分析并提出完善建议,指出此次修正案在侦查程序的修改中,兼顾了打击犯罪和保护人权两方面,整体上是有进步的。对于其不细致、不周全、有矛盾而可能导致实施者自由裁量权滥用的地方,需要进行合理的完善。     

刑事诉讼指定管辖制度之完善

刑事诉讼中的指定管辖,其目的是保障司法公正,实践中发挥了积极作用,但也有一定弊端,如适用随意性较大,指定侦查管辖于法无据,公、检、法在指定管辖上不能有效衔接,公民的管辖异议权与指定管辖申请权不受尊重等。存在的问题与我国特有的分工负责,互相配合,互相制约的制度结构,以及司法权集体行使的特殊形式有关。改革完善该制度,在模式设定上,仍应以审判为基点,同时明确侦查阶段的指定管辖并允许检察机关监督。审判中的指定管辖应由检察机关提出,由人民法院审查决定。在指导思想上,坚持程序法定原则,慎重适用指定管辖;坚持管辖便利原则,指定地点应当方便办案。在制度完善方面,需要明确指定管辖的适用范围;明确指定管辖的相关主体、考量因素及决定程序;合理设置指定管辖的具体程序,确认公民的管辖异议权与管辖申请权并予以保障。