胁从犯存废论

胁从犯是我国刑法特有的规定。胁从犯的存在有违背责任原则之虞,并且不利于"统一法秩序"的构建。基于心理动因、刑罚目的、谦抑精神、司法实践等方面的反思,当法律无法强求受胁迫者拒绝实施犯罪行为,亦即受胁迫者欠缺合法行为的期待可能性时,就不应追究受胁迫者的刑事责任。因此,胁从犯的规定是不必要的,可以考虑予以废除。     

论我国过失共同正犯的规范前提——以《刑法》第25条第2款的规范构造为中心

我国过失共同正犯的理论与实务都是以《刑法》明确否定过失共同正犯的成立为前提的。在此前提下,既不利于实践问题的解决,也不利于过失共同正犯理论自身的发展,因此有重新审视的必要。通过言语行为理论可以发现,《刑法》第25条第2款的规范构造既是行为规范也是制裁规范。作为行为规范,该条所禁止的是引起法益侵害结果的过失共同犯罪行为。而作为制裁规范即是要对违反行为规范的行为作出评价。因此,法官在依照该制裁规范裁判案件时,是以过失共同犯罪行为为评价对象的。在具体定罪量刑之前,需要确定是否成立过失共同犯罪,进而将结果归责于各行为人,这就为过失共同正犯的解释论展开提供了规范前提。     

不纯正不作为犯等价性考量的具体标准研究

等价性理论是为解决处罚不纯正不作为犯和罪刑法定原则之间的冲突而提出来。等价性是犯罪可罚的等价性,是对行为人进行处罚的根据,而不是决定行为人正犯的等价性。判断不纯正不作为犯成立在思维逻辑层面有三个步骤。等价性判断的内容是社会危害性的严重程度、犯罪性质等。等价性考量的具体标准是:(1)特别行为要素;(2)保证人地位;(3)行为人对法益侵害具有排他的支配力;(4)法益面临现实、紧迫的危险。     

基于“权力清单”、“权利清单”和“负面清单”的简政放权模式分析

简政放权是深化政府改革、加快政府职能转变的关键之举,是深化改革的总开关.选择通过“权力清单”、“权利清单”和“负面清单”实行新简政放权模式,已成为行政体制机制改革寻求新突破,进而推进国家治理体系和治理能力现代化的一种全新尝试.由三张“清单”夯实的简政放权模式,体现了中国特色的法治精神,也将深刻影响法治中国的整体性建设.     

两岸之间的文化冲突

两岸文化冲突,不仅发生在一些重大冲突事件中,而且在日常交流交往中也经常出现。本文列举两岸文化冲突在各个方面的具体表现及其对两岸关系的负面影响,指出这是两岸关系发展中的一个不可忽视的问题,希望引起双方的重视。并且指出,两岸文化冲突也有其正效应,两岸应当尊重文化的多元性,共同推动两岸文化的进步与繁荣。     

Effect of time and relationships on victim–offender dialogue completion in felony cases

Victim–offender dialogues (VODs) often take place in organizational contexts, the stakeholders of which may very well be interested in measures of program effectiveness such as completion rates. When reported, completion rates typically ranged from 40 to 60%. At the time of this study, Ohio’s VOD program was completing just 25% of initiated cases and program stakeholders were unsure as to the cause(s). An archived data analysis was performed on a sample (n?=?212) of the Office of Victim Services (OVS) completed and will-not-proceed files. One hypothesis and two research questions make use of archived data to explore this felony VOD context. The amount of time between the date the crime occurred and the date on which the dialogue file was initiated was not a significant predictor of dialogue completion. However, both victim-offender’s pre-crime relationship and dialogue file initiator were found to significantly impact dialogue completion rates. These results are considered in light of social exchange and uncertainty reduction theories.     

Richard Quinney on the Transformation of Self and Others: An Interview

As an alternative means of achieving justice, restorative practices are touted as community based. The ownership of decisions regarding the response to crime belongs to the key stakeholders, including victim(s), offender(s), and members of the community, both large and small. Each is invited to participate and through their participation, the stakeholders come to own the justice process and its outcomes. One challenge facing restorative practices lies in getting the community to participate. Without the community, several aspects of justice that are restorative, including forgiveness, support for participants, and reintegration are unlikely outcomes. This research examines community involvement in a victim–offender mediation program through observation and analysis of the agreements produced. The findings suggest that while restorative justice is theorized as community based, the community, in this case, appears absent.     

Contesting policy that undermines restorative justice for victims of crime☆

A policy provision in the Criminal Victim Assistance Program in British Columbia excludes the offender from participating in restorative justice approaches with the victim (and other affected parties) during counseling. A historical analysis of victim responses to crime shows that the victim experience to crime is socially constructed. In this regard, this policy act that excludes offenders from the victim healing process is consistent with a traditional approach to justice, which understands the offender to have committed a crime against the state, not the victim; however, separating the offender from the healing process is problematic within a restorative framework of justice where relationality is a central premise. Using a restorative lens, this policy act is contrary to an accompanying statute that has explicit provisions for counseling support for crime victims, as well as other statutes that provide for restorative responses to crime in Canada. The way we counsel and support victims from the harms created by crime cannot be separated from our view of justice.     

‘Joe everyday,people off the street’: a qualitative study on mediators’ roles and skills in victim–offender mediation

This qualitative study examined multiple perspectives of participants who experienced a Victim–Offender Mediation (VOM) program in a Midwestern city in the United States. Of particular interest are the roles and skills of mediators. Data consisted of 34 face‐to‐face interviews with 37 participants including adult crime victims, juvenile offenders and their parents, mediators and representatives from referring agencies. Insider perspectives regarding the roles and skills of the mediators in restorative processes were revealed through personal stories. Although the majority of the participants reported that the roles and skills of mediators were consistent with restorative justice principles, this exploratory study also revealed that some roles and skills exhibited by mediators were inconsistent with restorative justice values, which shows the variance of ‘real world’ restorative justice. Recommendations are made to promote mediators’ roles and skills that are compatible with restorative justice principles.     

Structural differences of violent extremist offenders in correctional settings

The process of radicalisation has received wide attention over the past decade. As the number of violent extremist offenders grows, the potential diffusion of radical ideologies inside prisons is gaining attention. Offender attribute data, both pre-custody and in-custody, routinely collected by Correctional Service Canada, were explored to determine whether violent extremist and mainstream offenders differed (that is, could be clustered); if so, what attributes have values that were systematically different for the two groups, and did those attributes lend themselves to predicting other offenders at risk for radicalisation.

Results from the pre-custody attributes show minute differences between the two groups. The in-custody attributes show visible, although still weak, differences. Combining the two data sets provides further evidence for differences, with some interactions between the two sets of attributes. Definitive answers about radicalisation were hampered by the small number of radicalised offenders (less than 1 percent) and several major differences in the offender population as a whole that obscure smaller distinctions. Nevertheless, the analysis suggests some attributes that may differentiate violent extremist and mainstream offenders. Although unanticipated, it also demonstrates that the entire offender population separates well into three clusters, and allows the qualitative pattern of attribute values that differentiates them to be determined.