中百科学思维形式比较(上)——整体思维与形式思维

中国与西方从共同的科学原始思维发展出两种不同的科学基本思维形式，形成鲜明的对比，前者是整体思维或相关思维，而后者是形式思维或逻辑思维；但这并不是说，两者是完全分离的，不相容的。经历史考察表明，这两种思维形式不仅由同一源泉——整体表象发展而来，而且在后来的发展中并未真的截然分开。而现在的发展似乎还表现出某种相互融合。     

审查逮捕程序改革的进路——以提高逮捕案件质量为核心

我国审查逮捕程序存在的最突出的问题是错捕和不当逮捕比例过高,这主要是由于侦查机关没有对逮捕的全部条件承担证明责任和犯罪嫌疑人诉讼地位客体化造成的。调整批捕权的职权配置,将其交给法院行使,并不能达成以审查逮捕的正当程序控制逮捕的目标。我们应当以树立检察官在审查逮捕程序中的裁判者角色为核心,维系审查逮捕程序的诉讼构造,强化对逮捕全部条件的审查,改进检察机关审查逮捕的工作机制,创造犯罪嫌疑人及其律师在审查逮捕程序中发挥作用的条件,推行不捕理由双重说明机制,进而强化侦查机关对逮捕条件的证明责任,以实现审查逮捕程序的正当化,达到防止错捕、减少不当逮捕,并为公诉程序、审判程序纵深改革创造条件的目的。     

International Signaling and Economic Sanctions

Do economic sanctions serve international signaling purposes? A fully structural statistical model that employs a signaling game as a statistical model is used to investigate the existence of signaling effects of sanctions. Estimation results suggest that sanctions fail to work as a costly signal. The cheapness of sanctions prevents a target state from being able to distinguish a resolute sender state from a sender who is bluffing. When sanctions are imposed, a target rarely updates its initial evaluation of the sender state’s resolve, much less than when a military challenge is observed.     

Taxonomy of Challenges for Digital Forensics

Since its inception, over a decade ago, the field of digital forensics has faced numerous challenges. Despite different researchers and digital forensic practitioners having studied and analysed various known digital forensic challenges, as of 2013, there still exists a need for a formal classification of these challenges. This article therefore reviews existing research literature and highlights the various challenges that digital forensics has faced for the last 10 years. In conducting this research study, however, it was difficult for the authors to review all the existing research literature in the digital forensic domain; hence, sampling and randomization techniques were employed to facilitate the review of the gathered literature. Taxonomy of the various challenges is subsequently proposed in this paper based on our review of the literature. The taxonomy classifies the large number of digital forensic challenges into four well‐defined and easily understood categories. The proposed taxonomy can be useful, for example, in future developments of automated digital forensic tools by explicitly describing processes and procedures that focus on addressing specific challenges identified in this paper. However, it should also be noted that the purpose of this paper was not to propose any solutions to the individual challenges that digital forensics face, but to serve as a survey of the state of the art of the research area.     

The influence of Austrian humanism in Theodor Herzl's vision of a Jewish state

Theodor Herzl's thought was a product of an austrian political and humanist culture. His political values were formed within a multinational, cameralist tradition that at its best bred a tolerance for differing persons and cultures but isolated the private individual from a responsible role in his or her own governance. The problem of governmental power in relation to the members of its society became for Herzl a conundrum whose solution was a redistribution of that power downward. Herzl's depiction of the future Jewish state in his 1896 The Jewish State and in his 1902 novel Old-New Land offers the vision of a privatized society in which each citizen may eventually become a cooperative owner. An examination of Herzl's vision reveals a thread of Austrian humanistic concepts and values that have characterized social-economic thought in Austria since the Enlightenment.     

论法律形式合理性的十个问题

法律制度的理性化表现在两个方面,一为实质合理化,一为形式合理化。法治原则在司法领域必然意味着形式合理性的优先,即,在司法过程中,当个案处理结果的实质合理性与法律本身的形式合理性可以两全时,司法者应当而且必须兼顾这两种价值,在司法裁判中同时实现个案中的实质合理性与法律的形式合理性;然而,当实质合理性与形式合理性发生不可两全的矛盾而不得不有所牺牲时,司法裁判则应当以优先实现形式合理性为原则,以牺牲形式合理性为例外。无论是对于持有社会本位价值观念的人们而言,还是对于持有个人本位价值观念的人们而言,只要他们遵循理性的指引来选择达成目的的手段,以优先实现形式合理性为原则、以牺牲形式合理性为例外的司法公正,都是唯一合理的选项。     

罪刑法定原则论纲

罪刑法定原则是刑法的根本原则,它存在的形式前提是宪法中规定的法治原则,而实质前提则是民主主义与自由主义。作为刑法原则,罪刑法定原则在形式上表现为四个派生原则,在实质上就是人权保障原则。由于两大法系对法治主义理解的不同,所以罪刑法定原则在大陆法系表现为面向实体的原则,而在英美法系则表现为面向程序的原则(实体的正当程序原则)。罪刑法定原则的实现,首先是作为立法原则,其次是作为司法原则,其不是实现在刑法运行的某一阶段,而是实现在刑法运行的全过程中。     

刑事诉讼价值评论

我国目前两种主流的刑事诉讼价值观———“目的价值观”和“过程价值观” ,都存在着一定的理论瑕疵。从价值的一般涵义出发 ,现代刑事诉讼价值体系是一个多层次、有结构的统一体 ,它涵括了目的价值和形式价值两个子系统。目的价值是指刑事诉讼致力实现的社会理想和终极目标 ,具体而言是指自由和秩序的价值结构。而形式价值则是指刑事诉讼本身在组织结构上的形式合理性 ,即刑事诉讼程序必须具有独立性、中立性、平等性、公开性、科学性。     

Labeling effects of initial juvenile justice system processing decision on youth interpersonal ties*

The juvenile justice system can process youth in myriad ways. Youth who are formally processed, relative to being informally processed, may experience more public and harsh sanctions that label youth more negatively as “deviant.” Drawing on labeling theory, the current study evaluates the relative effect of formal justice system processing on the interpersonal dynamics of youth peer networks. Using data from the Crossroads Study, a multisite longitudinal sample of first-time adolescent offenders, the current study applies augmented inverse probability weighting and generalized mixed-effects models to estimate the effects of formal processing on friendship selection processes of homophily and withdrawal and considers whether these effects vary by race and ethnicity. Consistent with expectations of homophily, formally processed youth acquire more new deviant peers and fewer nondeviant peers during the 3 years after their initial processing decision compared with informally processed youth. The findings suggest no differences exist across processing types in withdrawal from friends. These effects were consistent across racial and ethnic groups. Ultimately, this study explores the dynamic interpersonal mechanisms associated with labeling theory and offers additional insight into the negative effects of formal processing.     

Incentives to Rebel,Bargaining, and Civil War

To fully understand the effects of factors that encourage rebellion, we must differentiate between the way such factors influence mass decisions to join an ongoing rebellion and the way they influence the level of concessions offered by the government. We analyze a three-player bargaining model that allows us to do so. Our results indicate that governments tolerate a greater risk of conflict with their chosen concessions when any conflict that does occur is likely to take the form of a limited, rather than popular, rebellion. We demonstrate that rebellions are more likely to be popular when the general populace is relatively dissatisfied with the status quo and when the government is relatively incapable of putting down rebellions. Widespread poverty and low state capacity might therefore be associated with a lower likelihood of conflict, but a greater probability that the general populace will participate in any conflict that does occur.