寻衅滋事罪与故意毁坏财物罪的界分与适用——以张某“毁损财物”案为例

准确认定寻衅滋事罪与故意毁坏财物罪之间的界限,一直困扰着法学理论界和司法实务界。结合个案来分析寻衅滋事罪与故意毁坏财物罪之间的关系,便于揭示两者之间的区分标准与处理原则。     

浅析寻衅滋事罪与聚众斗殴罪的区别

寻衅滋事罪与聚众斗殴罪都是1997年刑法取消1979年刑法流氓罪后规定的罪名。由于两罪具有同源于流氓罪的历史渊源，实践中两罪很容易混淆。应从侵犯的客体、犯罪主体、犯罪主观方面、客观方面对两罪加以区分。     

Ethnic Elites and Rituals of Provocation: Politicians,Pastors, and Paramilitaries in Northern Ireland

ABSTRACT

Prominent theories of ethnic conflict argue that instrumental ethnic elites incite violence in order to promote their own power. Yet this approach focuses primarily on political leaders and ignores other ethnic elites, meaning that we know little about how other influential actors think about provocation. In this paper, I present novel data from Northern Ireland on diverse elite attitudes toward polarising Protestant parades with a long history of sparking ethnic violence. Using original surveys of Protestant elected officials and clergy as well as interviews with ex-paramilitaries, this paper demonstrates that these elite groups have different, often competing, interests and opinions regarding contested parades: while politicians tend to support provocative parades, the others do not. By addressing elite actors that are often ignored, I present a more nuanced picture of elite-mass relations and ethnic mobilisation in conflict.     

Intimate Homicide and the Provocation Defence – Endangering Women? R v. Smith

This case note considers the availability in the United Kingdom of the provocation defence in cases of intimate homicide in the context of the recent House of Lords decision in Rv. Smith [2000] 3 W.L.R. 654. The note argues that the expansion of the objective component of the defence to encompass the mental infirmities of individual defendants is dangerous for women. Although it has the potential to help some abused women who kill to use the defence, it has, at the same time, exposed women who are abused by sexually possessive, violent men to even greater danger. It is thus argued that the defence should be restricted in the way envisaged by the minority judgement of Lord Millett so that abused women will still be able to use the defence, but by anon-medical route. Alternatively, the defence should be abolished and defences which pose no risk of encompassing violent men should be developed to accommodate abused women. This revised version was published online in July 2006 with corrections to the Cover Date.     

The effect of provocation on foreign policy response: A test of the matching hypothesis

Does provocation engender a response in like kind? Research suggests that a matched response is common among rivals and is a preferred strategy in situations which resemble prisoner's dilemma. Yet, there is no empirical evidence for matching outside of rivalry or the use of force. This paper examines the hypothesis that nation‐actors respond to provocation in kind by considering the effect of provocation on foreign policy response for a wide range of conflict behavior and a variety of non‐rival nation‐actors. The thesis is advanced that the unique characteristics of dyadic interaction, specifically threat and involvement, serve to dampen or exaggerate response. Using pooled time series analysis of thirty‐five cases from 1950 to 1975, a test of this hypothesis is made. The results show that high levels of involvement discount threat and promote under reaction while low levels preclude response entirely. Moderate levels both dampen and exaggerate threat perception contingent upon the structure of dyadic interaction. For robustness, eleven illustrative cases are examined to flesh out specific dyadic variation. Finally, for comparison, the U.S.‐Sovict rivalry is also examined and shown to reveal a response pattern which includes a retaliatory memory.     

Sentencing Domestic Homicide Upon Provocation: Still `Getting Away with Murder

Sentencing practices in cases of domestic homicide have been the object of critical scrutiny on previous occasions across a number of jurisdictions. It has been suggested by some that these practices reveal judges to be taking a more lenient approach to women who kill their violent male partners than to men who kill allegedly unfaithful female partners. This note evaluates claims of gender bias in sentencing practices in UK cases of domestic homicide following the Court of Appeal sentencing decision in R. v. Suratan, R. v.Humes and R.v. Wilkinson (Attorney General's Reference No.74, No. 95 and No. 118 of 2002) [2002]E.W.C.A. 2982 concerning three men who killed their female partners. It will argue that in the wake of this decision current proposals to review both the substantive law of provocation and sentencing practices are to be welcomed. This revised version was published online in July 2006 with corrections to the Cover Date.     

Provoking Polemic – Provoked Killings and the Ethical Paradoxes of the Postmodern Feminist Condition

The argument that the provocation defence is adeeply sexed excuse for murder and should beabolished is often dismissed as polemical. Thisarticle challenges this subordinating strategyfavoured by the law of provocation's apologistsand continues to make the case againstprovocation. Drawing on a range of theoreticalapproaches to questions related to polemic,anger, and ethics, it strives to valorisefeminist and queer anger about provocation'svictim-blaming narratives, while remainingcognisant of poststructuralistproblematisations of both law and law reform.     

析敲诈勒索罪与寻衅滋事罪之界限

在刑法分则的罪名体系中,敲诈勒索罪与寻衅滋事罪的某些犯罪构成特征十分相似,给司法实践中罪名的实际认定带来了困难。本文通过分别对敲诈勒索罪与寻衅滋事罪的犯罪构成进行分析,以一个案例为例,从两者的区别入手,对案件进行了了比较详尽的分析,并提出了相关的看法和建议,希望能对司法实践有所借鉴。