Legislation on the New Types of Cybercrime and Its Application

The new types of cybercrime have different features from traditional “cumulative crimes.” The application of the relevant provisions of the Criminal Law has run into difficulties, and the relevant theoretical explanations of substantive preparatory crime and being an accomplice in crime find it hard to achieve self-consistency. Legislation on the new types of cybercrime is a legitimate response to recent changes in this area. Utilizing the particular techniques of cybercrime and the circumstantial requirement of limiting the amount of criminal harm is the key to satisfying the conditions for offences warranting criminal punishment. The harmfulness of the new types of cybercrime is not great; the law’s circumstantial requirements are flexible, and the criteria for judicial application are unclear, so the law’s provisions are seldom invoked and the sphere of criminal activity is unduly expanded. In order to give full play to the effectiveness of this legislation, we should formulate reasonable judicial rules that accord with the constitution of cybercrimes, narrow down the constituent elements of such crimes in a reasonable way, and categorize and limit the interpretation of circumstantial requirements.     

转型时期司法中的民意现状与策略设计

中国转型时期,法官对司法中的民意采取了比较模糊的回应手法,缺乏对民意精细化和程序化的分析与运用,导致了司法公信力的缺失。因此,法官需要对民意进行灵活的识别,有针对性地回应。民意的回应策略需要坚持论辩主义精神,建立在程序主义基础之上。对法律方面的民意须保持警惕,并充分地解释;运用事实方面的民意还原事实真相,节约司法成本;思考结论性民意背后的推理逻辑,但不直接采纳结论性的意见;将制度建设的民意作为日后司法改革的参考资料。建立科学合理的媒体交流平台,需要媒体在民意与司法之间保持客观公正的立场与姿态,避免媒体的不当报道加剧司法与民意的矛盾。改善司法的运作模式和法官选任机制,降低日后回应民意的司法成本。     

State Policies as a Source of Civil Law*

State policies exert a great influence over Chinese civil justice. Article 6 of the General Principles of Civil Law stipulates that state policies are a source of civil law, but the path by which they enter civil justice is not a rational one and may lead to adjudication difficulties with state policies. State policies are integrated with state law, and the laws and legal interpretations formulated by the National People’s Congress and its Standing Committee, judicial interpretations, administrative regulations, autonomous regulations and special regulations, administrative rules and other regulatory documents are forms of expression of state policies. Different rules for adjudication apply depending on the different vehicles of state policy. The Supreme People’s Court can play a role in making public policy and guiding state policy into civil adjudication through “open” and “unseen” channels.     

Cost-Sharing in Civil Justice

As an economic factor affecting access to justice, the cost of justice naturally constitutes an element of judicial reform. It is the overall deconstruction of the cost of civil justice, rather than partial observation and analysis confined to litigation costs, that can legitimize the sharing of court and litigation costs and clarify the demarcation between public and private costs. This first-order rule of cost-sharing is intended to establish a balance between the state’s investment of public resources in the judicial system and the costs borne by the litigant. The second-order rule of cost-sharing centers on the distribution of litigation costs among litigants. This requires not only the setting up of the goal of just and equitable sharing of litigation costs, but also the overall consideration of the adjustment function of the cost mechanism in litigation and pursuit of the general improvement of the justice system. The third-order cost-sharing rule should focus on giving full play to the legal services market and social organizations in sharing the cost of litigation. Its success will depend on the development of professional ethics and on legal regulation.     

The Application of Pareto＇s 80/20 Rule to Law： A Quantitative Analysis Based upon Trials Involving a Plea of Guilty

在法律领域，特别是在诉讼等争端解决领域，司法机关可以通过简化简单多数和优化复杂少数实现最优司法资源的配置。司法机关简化简单多数，是要在保证法律主体基本权利的前提下，本着简化程序而不简化权利的原则降低司法活动的边际成本，提高司法效率并促进司法公正。基于被告人认罪案件审理的定量分析结果，中国刑事司法领域通过简化简单多数来优化复杂少数的资源配置机制还有较大空间。2012年《刑事诉讼法》确认的被告人认罪案件简易程序的实施，需要充分保障被告人获得律师帮助的权利，并提高侦查、起诉和审判等环节的司法效率，才能在整体上科学配置刑事司法资源并有效促进司法公正。     

在理性与现实之间寻求司法的正义——兼论“以事实为根据,以法律为准绳”原则的发展和变化

在我国当下,形式理性的法律面临现实困境,即:司法裁决不能被公众认可,法律的权威和公信力也在下降.法官“以证据为根据”的裁判理念虽然符合法律实践理性的要求,然而也易引致对正义价值追求的放弃和忽视;公众则视“以客观事实为根据”为司法不言自明的正义要求.如何破解这一困局?文章对“以事实为根据,以法律为准绳”原则在我国的观念认知进行了梳理,认为该原则在公众与司法者之间存在认知差异,从而导致裁决不能被认可.回应型法的有关理论值得借鉴,它认为应以法律的目的缓和引导制度,使其不拘泥于形式主义和仪式性,以探究法律中蕴涵的公正价值.在司法裁判中,应以公正为价值,兼顾对外部社会现实的关照,建立起以“证据事实”为基础、以“客观事实”为依归的“法律真实”标准.     

Criminal Sanctions against Non-state Functionaries Who Accept Bribes and Abuse Public Power

为了惩处非公职人员利用公共权力受贿的行为, 中国刑法反腐败体系先后经历了 以共同犯罪模式处罚到以单独犯罪模式处罚, 以及由司法解释探索处罚规则到由刑法 典直接规定罪刑规范的转变。司法解释格外关注对与公职人员有共同利益关系的非公 职人员的处罚, 利用影响力受贿罪是为解决司法解释产生的刑法真空而设, 但是又出 现了新的法律障碍。利用影响力受贿罪主体的一般化应是今后的完善方向。

关键词: 非公职人员 特定关系人 关系密切人 补漏规则

In order to penalize the acceptance of bribes by non-state functionaries who abuse public power, the anti-corruption system of China’s criminal law has undergone successive transformations: from punishing non-state functionaries who accept bribes in accordance with the joint crime model to punishing them in accordance with the model for a single crime, and from seeking the rules of punishment in judicial interpretations to having the criminal code directly prescribe the criteria for determining a charge. Judicial interpretations have been particularly concerned with the punishment of non-state functionaries who have a relationship of common interests with a state functionary. The crime of accepting bribes given in return for trading in influence was established to solve the problem of the judicial vacuum created by judicial interpretations, but new legal obstacles have emerged. To generalize the class of offenders who accept bribes in return for using their influence is the route future improvement should take.     

China’s Anti-corruption Strategies from the Viewpoint of Criminal Justice

腐败案件的高发案率是中国当前所处的社会转型期的突出特点。为了适应治理腐 败犯罪的需要, 中国刑事司法形成了一整套独具特色的侦查体制、办案原则, 并且注 重依靠群众查办腐败案件, 注重打击重点的随时调整。中国刑事司法注重提高腐败案 件的侦查能力和加强反腐败刑事司法的规范化建设等, 这是中国反腐败策略在刑事司 法领域的具体体现。同时, 中国在反腐败刑事程序如何与国际公约对接等方面面临着 一些挑战, 这也指引着中国刑事司法改进的方向。

关键词: 反腐败 社会转型 刑事司法 司法改革

A high incidence of corruption cases is a conspicuous feature of China’s present stage of social transition. Responding to the demands of combating corruption, Chinese criminal justice has developed a unique set of investigative methods and principles for handling of such cases, placing a high value on relying on the masses to find and act on cases of corruption and promptly adjusting its focus to the key areas of such crimes. It concentrates on enhancing investigative capacity and strengthening the standardization of anti-corruption criminal justice. These practices represent the concrete embodiment in the field of criminal justice of the government’s anti-corruption strategies. At the same time, China also faces some challenges in adjusting these procedures to accord with international practice. This is one of the aims of the judicial reform in China.     

Crime,capital punishment,and knowledge: are criminal justice majors better informed than other majors about crime and capital punishment?

Criminal justice agencies increasingly seek better educated employees, who should have greater knowledge of criminal justice issues. This has lead to an increase in the number of students majoring in criminal justice. This study employed a non-random, convenience sampling design of 730 college students of various ranks and majors at a mid-sized, 4-year public university in Michigan to determine what impact a criminal justice education had on knowledge of the death penalty and other criminal justice facts compared to students in other majors. It was found that there was a difference between criminal justice majors and other majors in knowledge about crime and capital punishment; however, the difference was neither widespread nor striking as the authors had hoped.     

Evaluating New Zealand’s restorative promise: the impact of legislative design on the practice of restorative justice

ABSTRACT

Restorative justice is regarded in modern criminal justice systems as one approach to address inadequacies in the conventional justice model. New Zealand has become a leader in implementing legislatively mandated restorative procedures. This reputation is due in part to a handful of supportive statutes: the Sentencing Act 2002, the Victims’ Rights Act 2002, the Parole Act 2002, the Corrections Act 2004 and subsequent amendments to those acts. In this article, I evaluate the practices bolstered by these acts and how effectively they operate, accounting for how legislative design may contribute to achievements and shortcomings in New Zealand's restorative justice programmes. I supplement the results by comparing New Zealand's efforts to those in Vermont, a U.S. state similarly well-regarded for its restorative policies. The evaluation of each jurisdiction's restorative justice programme is based on metrics for restorative success from Bazemore and Schiff (2005. Juvenile justice reform and restorative justice: building theory and policy from practice. Cullompton: Willan Publishing). I employ qualitative and quantitative data, surveying existing evaluations of restorative justice in New Zealand and Vermont, collecting longitudinal statistics, and conducting interviews with restorative justice practitioners. Overall, this analysis reveals that the design of restorative justice programmes requires negotiation; it is difficult to balance the dimensions of effective restorative justice with the needs of modern justice systems.     

非公职人员利用公共权力受贿的刑事制裁(英文)

为了惩处非公职人员利用公共权力受贿的行为,中国刑法反腐败体系先后经历了以共同犯罪模式处罚到以单独犯罪模式处罚,以及由司法解释探索处罚规则到由刑法典直接规定罪刑规范的转变。司法解释格外关注对与公职人员有共同利益关系的非公职人员的处罚,利用影响力受贿罪是为解决司法解释产生的刑法真空而设,但是又出现了新的法律障碍。利用影响力受贿罪主体的一般化应是今后的完善方向。     

Residential Programmes for Children and Youth: An Exercise in Re-framing

Summary The key functions of residential programmes for children andyouth irrespective of their location in the health care, education,social welfare or criminal justice system are identified inthis paper. The issues of mandate for and status of those servicesis addressed. Finally, a series of propositions are offeredwhich seek to show how those factors influence the social positionand public credibility accorded to those important componentsof the group care field.     

The Thinking and Approaches of Criminal Law Legislation in a Transitional Period

In this transitional period, the concept of legally protected interests in Chinese criminal legislation is changing with the imposition of new control measures that endow criminal law with new functions, including taking an active part in social governance. Active legislation will not entail the systemic risk of excessive interference by criminal law. Criminalization does not conflict with criminal law’s concept of modest restraint. In terms of overall approach, we need to establish dynamic, rational and diversified legislative mechanisms for the future. In terms of specifi methods, legislation must maintain an approach of actively intervention in the life of society, changing the current centralized legislative model. However, decentralized legislation should not necessarily adopt the tripartite model of the criminal code plus special enactments and auxiliary criminal law. Rather, it should construct a written criminal law system centered on the criminal code and supplemented by the law on minor offences, in parallel with criminal penalties and public security measures. This will produce a mechanism for the seamless incremental convergence of public security administrative punishment law, minor offences law, and criminal law. The net of justice is fine-meshed but its penalties are light. The addition of new crimes must uphold the rule of law, correspond to specifi social situations, maintain an attitude of sensitivity and clarity toward lawlessness and regard criminal law as a last resort, in order to alleviate the pressures legislators currently face from the growing body of criminal law.     

Criminal defendants’ family and the death penalty in China - a case analysis

ABSTRACT

The restorative justice movement has increased the rights of consciousness for crime victims and their families globally. Though the practice of family group conferences in Australia and New Zealand and the court-ordered mediation programmes in China have increasingly involved defendants and their families, their roles in the criminal justice system have not been the main focus of academic inquiries. Citing a high-profile capital case in China, the Nian Bin case, this study examines the defendant family’s strategies in seeking legal redress, managing physical, emotional and financial tolls as well as coping with the victim families, throughout their eight-year pursuit of Nian’s exoneration. Given Confucian teachings on the importance of family to the individual and the society at large, this study provides a microscopic view into various precipitating factors for a capital defendant’s family activism. It also draws broader implications for China’s criminal justice reforms and the restorative justice movement.     

"In My Opinion . . .": Justices' Opinion Writing in the U.S. Supreme Court, 1946–1997

Objectives . We develop hypotheses to explain the opinion writing by justices on the U.S. Supreme Court from 1946–1997. Methods . We use data from the U.S. Supreme Court Database, Phases I and II, to examine the proportion of cases in which a justice writes an opinion each term as well as the differences between writing majority, dissenting, and concurring opinions. OLS regression with robust standard errors is the estimation procedure. Results . We find that a justice's position as Chief Justice, professional and education background, reputation ranking, and tenure on the Court can explain a justice's opinion writing. At the same time, we discover that particular variables have different affects on writing majority, dissenting, or concurring opinions. Conclusions . This study demonstrates the importance of both structural and personal background variables in explaining judicial behavior. It also shows the importance of analyzing different kinds of judicial opinions when explaining the justices' opinion writing.     

‘‘With the greatest respect and fidelity:’ a Cherokee vision of the ‘Trust’ doctrine”

The trust relationship is the conceptual/philosophical framework against which all relations between the federal government and indigenous groups are conducted. Yet despite the centrality of this concept, federal policymakers have no consistent or agreed upon definition of what the trust relationship actually entails (Wilkins, 1997). And, more importantly, indigenous conceptions of trust have rarely been assessed. This article analyzes and advances one tribe's—the Cherokee—perspective on trust. In focusing on how the Cherokee perceive trust, this section emphasizes that from an indigenous viewpoint the trust relationship embodies a complex and sophisticated understanding that both the tribe and the United States have reciprocal responsibilities to maintain positive relations towards one another. The leaders of the Cherokee people—one of the more diverse indigenous groups— understood in the federal government's actions, whether these were expressed in treaties, policy statements, congressional laws, or court decisions, that the federal government was pledged to protect Cherokee property and sovereignty, would act with utmost integrity in its legal and political dealings with the people, and would insure that the United States political and judicial representatives would act in a moral manner regarding the tribe's rights. Notwithstanding the federal government's tremendous variety of treaty and trust violations, the Cherokee conception of trust is regenerative from generation to generation. This breathes new life into a seasoned concept and offers hope for the often difficult political/legal relations between the federal, state, and tribal governments. And here we beg leave to ask of our father that, in future transactions of a public nature between the United States and our nation, the American Government will not require of our nation any thing which, as our protectors and guardians, they will not, after due deliberation, advise us to comply with; and having no doubt of the magnanimity and benignity of the Government, we shall return home satisfied, and report to our nation the result of our mission to this. With the greatest respect and fidelity, we subscribe our names (Going Snake, et al., 1817, p. 147)     

Restorative justice for juvenile offenders in China: Current practices and challenges

ABSTRACT

In recent decades, restorative justice has gained considerable recognition worldwide and has become a prominent option for diverting juveniles away from the traditional criminal justice system as well as delivering fair and just outcomes in the justice process. This paper provides an overview of how the criminal justice system operates for juvenile offenders in the People’s Republic of China (hereafter, China). Based on a sophisticated literature review of recent Chinese academic journal articles on restorative justice for juveniles, the paper presents an analysis of the characteristics and operational procedures of current practices. Deficits and potential future developments pertaining to Chinese restorative practices for delinquents are also discussed.     

On the Status and Function of Judicial Justice in Social Governance Innovation

Social governance innovation is a basic requirement of China's socialist construction, and an important guarantee that people can live and work in peace and enjoy long-term stability and order. Strengthening and innovating social governance has great significance for the modernization of the national governance system and governance capacity, and this is where judicial justice plays a unique role at the level of government, society, and the individual. That is, judicial justice is the key to transforming governmental functions; the guarantee of a new-type social construction; and the guide to upgrading autonomy at the grass-roots level. To achieve judicial justice, we must popularize the idea of the rule of law, improve judicial work style and innovate judicial institutions.     

The Criminal Justice System and the Politics of Scrutiny

The criminal justice system remains largely untouched by over a decade of scrutiny and restructuring of public services by consecutive Conservative administrations. This is despite the system's lack of accountability, absence of clear objectives, prolific unfettered spending patterns, and discrepancies in its treatment of suspects and offenders at all stages of the prosecution process as witnessed by regular and embarrassing “mishaps”. This paper explains the apparent contradictions in the New Right's social policy agenda showing how the overtly Thatcheritepolicies of “law and order” with its own brand of moral authoritarianism continues to immunize and protect the professional players on the criminal justice stage from the policies of scrutiny and consequent change. Ironically, it is argued, criminal justice and penal policy is one area of social policy where the machinery of appraisal, audit and management by objectives would be highly beneficial. Paul Wilding provided stimulating and helpful comments on the first draft of this paper and Howard Parker helped me to keep the contradictions of the system as the theme of the paper.     

When the research is not reproducible: the importance of author-initiated and institution-driven responses and investigations

Important and potentially useful findings in the sciences are under more intense public scrutiny now more than ever. Other researchers in the field dive into replicating and expanding the findings while the media swamps the community and the public with peripheral reporting and analyses. How should authors and the hosting/funding institutions respond when other workers in the field could not reproduce or replicate their published results? To illustrate the importance of author-initiated and institution-driven investigations in response to outcries of research irreproducibility, I draw on comparisons between three recent and well-publicized cases in the life sciences: betatrophin, Stimulus-Triggered Acquisition of Pluripotency (STAP) cells, and Natronobacterium gregoryi Argonaute (NgAgo). Swift, transparent responses and investigations facilitate activation of the self-correcting mechanism of science and are likely also critical in preserving the community’s resources, public trust, and the reputation of the institutions and individuals concerned. Operational guidelines for “author and institutional responses” towards external reports of irreproducibility should therefore be in place for all research intensive institutions.