论检察机关撤诉后的重新起诉

检察机关撤回起诉后重新起诉在我国司法实践中有其现实意义。重新起诉本身并不一定构成重复追诉,但因我国公诉案件撤回起诉以及撤诉后重新起诉制度不完善,被告人容易陷入"撤诉—再起诉"循环往复的泥沼。严格来说,"一事不再理原则"和"禁止双重危险原则"都不适用于撤诉后的重新起诉,应当从刑事诉讼保障被告人权利的精神实质出发,对检察机关撤诉后重新起诉作出一定的限制。     

再论盗窃罪既未遂的区分标准——以行为过程为分析视角

传统上认定盗窃既未遂的观点存在共性缺陷,引入行为过程的概念能够克服之。行为过程是一个主客观相互作用的过程,因此科学的盗窃既未遂认定标准也应主客观相结合,同时围绕犯罪行为人的行为过程来设计。其认定标准有二:一是行为人的主观计划是否实现;二是行为人的行为在客观上是否对受保护的法益造成损害,即是否实际控制被盗财物。     

非法证据排除规则的框架与反思

2017年新出台的有关非法证据排除问题的司法解释从实体和程序两个方面发展了我国现有的非法证据排除规则。该解释细化了“非法取证行为”的内涵,初步确立了重复性供述的排除规则,完善了程序性辩护制度,进一步明确了检察机关、法院在审判前和审判阶段排除程序中的主导作用。但不可否认的是,受司法体制等因素的影响,我国非法证据排除规则在实体的排除对象上仍存在一定的结构性难题;而在程序上,律师在程序性辩护中仍面临的一些制度性障碍、嫌疑人及其辩护人在审判前排除程序的参与不足以及审判阶段排除程序的形式化等都是亟待解决的问题。为了保证非法证据排除规则的有效实施,应当从根本上增强法院审判的独立性、权威性和公正性。     

GIRL FRIENDS ARE BETTER: GENDER,FRIENDS, AND CRIME AMONG SCHOOL AND STREET YOUTH*

In recent years, popular media has drawn attention to “mean girls” and their negative treatment of others, particularly other females. But while the attention to girls' aggression and their mistreatment of their peers highlights understudied aspects of female behavior, it neglects the beneficial aspects of female friendship. We argue that compared to relationships with males, friendships with females provide more social control, fewer opportunities and less motivation for offending and may therefore discourage crime. Because an adolescent's gender likely influences the association between the gender of one's friends and crime, we anticipate that the association will be stronger for females than for males. The relationship is also likely affected by the context in which relationships originate; we expect that those that develop in less conventional contexts will have weaker effects on crime. We explore these hypotheses with a comparative analysis of effects of friendships on property crime in two samples of youth: those who live at home and attend school and those who are homeless and spend their days and nights on the street. Our findings support our hypotheses. The relationship between female‐dominated friendship networks and property crime is negative and significant; however, this association is strongest for school females, weaker for school males and females who live on the street, and nonsignificant for homeless males.     

A linear model of fine enforcement with application to England and Wales

Fines are the most common sanction against criminal offenders in many countries. Economists have developed models for determining the optimal use of fines. Their models, however, generally abstract from problems of fine enforcement and assume that all fines are collected and that enforcement costs are zero. Criminologists and practitioners, on the other hand, have been very much aware of enforcement costs. Imprisonment for fine default is particularly costly and exacerbates the crowded prison conditions that exist in many countries. This paper extends previous economic models by dropping the limiting assumption of zero enforcement costs. The model is estimated using data from England and Wales and is used to evaluate alternative methods and levels of fine enforcement.     

Distinguishing Between Legally and Illegally Produced Gold in South Africa

The identification of gold‐bearing material is essential for combating the theft of gold in South Africa. Material seized in police operations is generally a mixture of gold from different mines, and as such cannot be traced back to a single location. ICP‐OES analysis of material dissolved by acid dissolution provided a database of gold compositions comprising gold from South African mines, illegal gold stolen from the mines, and commercial gold alloys and jewelery. Discrimination between legal and illegal gold was possible due to the presence of Pb, As, Sb, Sn, Se, and Te in the stolen material, elements which are not present in legally produced gold. The presence of these elements is a quick and simple way to distinguish between gold alloys based on refined gold, such as in commercially manufactured jewelery, and gold alloys containing a proportion of unrefined and therefore illegally obtained gold.     

Bounded rationality of identity thieves: Using offender‐based research to inform policy*

Research Summary Data for this study were collected in semistructured interviews with 59 individuals serving time in federal prisons for identity theft. We explore how offenders' experiences and life circumstances affected their subjective assessments of risks and rewards and thus facilitated the decision to engage in identity theft. Our findings suggest that offenders perceive identity theft as an easy, rewarding, and relatively risk‐free way to fund their chosen lifestyles. Policy Implications The findings suggest that several situational crime‐prevention measures may be effective at curbing identity theft. Crime‐prevention programs that are geared toward removing excuses and advertising consequences may be effective in deterring potential offenders. We also recommend that rehabilitation programs for convicted identity thieves be cognitive‐based interventions aimed at changing the way offenders think about their crimes.     

From the economy of deficit to the black-market: car theft and trafficking in Bulgaria

Official and victimisation data show that despite falling rates for motor vehicle thefts, much of the EU ‘organized crime’ related thefts have remained almost stable. Nevertheless, the car-theft market in the EU has changed, and so has the role of traditional destinations for stolen vehicles, such as Eastern Europe. The paper examines the demand, supply, and regulation factors that shape the structures of the vehicle theft market in Bulgaria, and smuggling patterns and offender behaviour in source countries, in particular Spain. We argue that such nuanced historical approach that takes into account a wider range of factors in destination countries can help explain the recent transformations in Europe’s vehicle-theft markets.

论盗窃罪既遂的标准

理论界对盗窃既遂、未遂的标准并未形成一致意见,司法实务界也缺乏科学、统一的标准,影响了法制的统一与公正。有必要从我国刑法理论界关于盗窃既遂、未遂标准的争议入手,结合法理和司法实践经验,分析、界定失控说理论及其相关概念,为统一标准的建立提供参考。     

The Comparability of Data on Convictions and Sanctions: Are International Comparisons Possible?

This article looks at the availability of data on convictions and on sanctions and measures in European countries, on the basis of the European Sourcebook data. It emphasises the limitations in the use that can currently be made of this data, although it has a wide potential in helping to understand criminal justice policy. The differences are, for instance, to be found in offence definitions, statistical rules, and political changes. Moreover the data collection for the Sourcebook on the four categories of sanctions/measures (fines, non-custodial sentences, suspended custodial sentences and unsuspended custodial sentences) was sometimes difficult. Attention is paid to the information collected, the comparability and, as an illustration, to three specific offences (completed homicide, rape and all thefts). The conclusion is that wide differences exist in the level of convictions found and the use of sanctions by the courts. Such differences will reflect both different levels of criminality, diversion away from the courts but also different recording practices. However, even with these caveats what is available does provide a useful starting point in identifying countries on which further research may be carried out.