开放与自治:WTO的司法与中国司法

WTO的司法规则和程序表现为协商、斡旋、调解与调停、专家组、上诉评审、DSB对有关建议与裁决的监督执行、补偿和中止减让以及仲裁等。DSU的特点有 :(1)争端解决程序的统一性 ;(2 )争端解决机构的专门化 ;(3)表决方式的否定式共识型 ;(4)非违法之诉程序的明确化 ;(5 )期间评审和上诉评审程序的明确化 ;(6 )期限的明确化。WTO的司法对国家主权产生了一定的限制。WTO的司法与我国司法存在诸多方面的差别 ,WTO的司法程序与中国司法程序应实现最大化对接。在WTO之下 ,中国司法应选择开放与自治的态势。     

百年中国司法权体系的发展进程及现实反思

司法独立是现代法治国家的重要标志之一。司法能否独立,直接取决司法权体系能否独立与完整。我国近代意义上的司法权体系肇始于清末,至今时届百年。在这不算短的历史长河中,司法权体系的发展经历了大陆法系模式、三权分立模式、五权分立模式及社会主义模式,由于缺少良好的政治、社会及文化环境,其独立进程坎坷起伏,障碍重重,难以健康发展,对国家政治稳定及社会秩序造成过巨大负面影响。反思百年中国司法权体系发展的经验和教训,有助于为当下中国建立健全真正独立完整的司法权体系、促进法治社会的建设寻找良策。     

The Limits of Reconciliation: The Story of a Perpetrator,Katherine Ann Power

In this paper, I apply concepts of restorative justice, along with moral philosopher Joanna North's (1998) multistage model of the process of earning forgiveness to the case of 1960s antiwar militant, Katherine Power. Both frameworks assume that forgiveness ought to culminate in reconciliation between perpetrator and victim. On September 23, 1970, Katherine Ann Power, a 20-year-old college student, was a member of a group of five who were robbing a bank near Boston to support the movement against the Vietnam War. One from the group stayed at the bank and shot and killed a Boston police officer and father of nine. Under Massachusetts' felony murder law, all five were chargeable with murder. Power went underground for 23 years, remaining on the FBI's Ten-Most-Wanted list longer than any other woman in history. During her fugitive years, Power lived her life in a purposeful attempt to make atonement. Ultimately, though, she came to understand that her crime was not a private matter, but demanded social and relational modes of remediation, including public confession, public penance (in a penitentiary), and efforts at reconciliation with the family of her victim. So in 1993, she turned herself in, pleaded guilty to manslaughter, and began serving an 8–12-year sentence in Massachusetts. She completed her prison sentence in October, 1999. Power spent her years in prison engaging in reflection and action that maps well onto the first five stages of North's model and onto much of the restorative justice model. So far, though, Power's efforts have failed to yield the hypothesized reconciliation with her victims. Examination of the parallels and divergences between these theoretical frameworks and Power's narrative provides significant insight into the meaning, the promise, and the limits of reconciliation.     

以严为主 辅之以宽——初议职务犯罪中的刑事司法政策？

刑事政策是刑法的核心和灵魂,刑事司法政策是刑事政策在司法活动中的具体体现。直接关系到国家控制犯罪目标的有效实现。职务犯罪中的刑事司法政策根植于我国当前和谐社会背景下宽严相济刑事司法政策的总体框架之中。基于对我国职务犯罪形势的基本判断,在相当时期内职务犯罪的刑事司法政策应“以严为主,辅之以宽”,且应避免从严过度、不依法从严和无节制擅法宽大的错误倾向,做到严格依法办案,公正文明高效执法,努力实现对职务犯罪的有效控制,为构建和谐社会提供法治保障。     

Enhancing Title IX Due Process Standards in Campus Sexual Assault Adjudication: Considering the Roles of Distributive,Procedural, and Restorative Justice

ABSTRACT

Title IX prohibits sex discrimination—including sexual assault—in higher education. The Department of Education Office for Civil Rights’ 2011 “Dear Colleague Letter” outlines recommendations for campus sexual assault adjudication allowing a variety of procedures that fail to protect accused students’ due process rights and victims’ rights under Title IX. This article reviews two diminished due process rights in campus adjudication: cross-examination and the preponderance of the evidence standard. We use an organizational justice theoretical framework to show that limitations on due process rights reduce fair outcomes for both victims and the accused. We provide recommendations for a restorative justice approach to campus adjudication that operates within this theoretical framework to increase fair outcomes in adjudication, bolster perceptions of adjudicatory system legitimacy, and reduce campus sexual assault.     

Apology in victim–offender mediation

Victim–offender mediation practices bring conflicting parties together so they can engage in a two-way dialogue and ultimately negotiate a mutually agreeable resolution. The fact that apology may be a motivator for participating in the mediation process and that it is often a common outcome of mediation suggests that research on mediation ought to more carefully explore the nature of the apologies that are offered. The present study provides a qualitative exploration of the prevalence and nature of the apologies offered by offenders to their victims during face-to-face mediations. Fifty-nine mediation agreements recorded by the longest running mediation scheme in the UK were analysed. It was found that 50.8% of agreements contained mention of the perpetrator saying ‘I’m sorry’ or offering a partial apology (i.e. acknowledging harm and/or promising forbearance). Full apologies were absent in the mediation agreements. Agreements did not make explicit mention of the offender admitting responsibility or expressing remorse or regret. Finally, although the mediation agreements did not make any explicit mention of offenders offering reparation, they did record efforts at providing solutions to the conflict.     

Portrait of the Accused as a Young Man: New Zealand’s Harsh Treatment of Young People who Commit Serious Crimes

Abstract

This article argues that although New Zealand’s unique youth justice system generally considers the whole picture of a young offender and responds holistically to the offending, in the case of those accused of serious crimes, the system draws a limited picture that depicts the young offender as a ‘young adult’. These young people are sentenced in adult courts, where their youth, inexperience and potential for rehabilitation are far less influential than they are in a youth court. The result is harsh treatment of some extremely vulnerable young people, which breaches New Zealand’s international obligations. That harsh treatment is particularly problematic, given its hugely disproportionate effect on Māori youth.     

Analytical survey of restorative resins by SEM/EDS and XRF: databases for forensic purposes

Frequently in forensic cases, unknown substances must be identified. Automated databases can ease the burden of comparison as materials may be compared against many known standards in a relatively short period of time. It has been shown that dental resins can be named according to brand or brand group even in conditions as harsh as cremation. Databases are already in use for many materials, but no such database exists for dental resins. Thus, two databases were generated. One utilized a laboratory-based method, scanning electron microscopy with energy dispersive X-ray spectroscopy (SEM/EDS), in conjunction with the Spectral Library Identification and Classification Explorer (SLICE) software. The other was based on portable X-ray fluorescence (XRF). The ability to perform database comparison with portable instrumentation can thus be brought directly to the field. Both the SLICE and XRF databases were evaluated by testing unknown resins. EDS is a well-established technique and the SLICE program was demonstrated to be a good tool for unknown resin identification. Portable XRF is a relatively new instrument in this regard and its databases have been constructed mostly for metal alloy comparison and environmental soil testing. However, by creation of a custom spectral library, it was possible to distinguish resin brand and bone and tooth from other substances.     

Restoring Choice: The Relationship Between Offense Seriousness,Intervening Time,and Victims’ Responses to the Offer of Restorative Interventions

This study investigates victims’ responses to the offer of involvement in a restorative intervention. It tests the hypotheses that victims’ choices are related to the seriousness of the offense (H1), and that this relationship is moderated by how long after the offense the restorative intervention is offered (H2). A cross-sectional, between-subjects design was used, drawing on data from 256 offenses collected for operational purposes by a restorative justice service. Victims of medium-seriousness offenses were most likely to choose indirect and direct reparation. Intervening time moderated the relationship between seriousness and victim choice: victims of low-seriousness offenses became more likely to choose community reparation with time, victims of medium-seriousness offenses became less likely to choose direct or indirect reparation, and there was no change with time for victims of the most serious offenses. These results suggest nonlinear relationships between seriousness, intervening time, and victim choice. Although more complex and in different directions than anticipated, they lend some support to both hypotheses. The study highlights qualitative differences between types of restorative interventions, points to a significant disparity between victims’ choices and processes the literature suggests are of most benefit, and raises questions regarding when and how restorative interventions should be offered.     

死刑核准权力回收的价值评析

死刑核准权的回收不仅仅是权力行使主体的变更,更体现出了我国法制统一的价值目标。通过回收死刑核准权,提升了我国司法特别是最高法院的司法权威;加快了我国刑事诉讼人权保障的前进步伐;实现逐步消减死刑适用比例的目标。