谈《刑法》对未成年人的保护与完善

我国《刑法》在定罪、刑罚的设置和适用方面对未成年犯罪人都给予了特殊的保护,对以未成年人为侵害对象的犯罪进行严厉的制裁。在刑法中应取消未成年时期的刑事污点,对以未成年人为侵害对象的犯罪作一般性规定,并增设社区矫正处罚方式。

对单位犯罪处罚规定的修正建议

从主体涉及范围、犯罪手段和危害性的严重程度等方面分析了单位犯罪 ,探讨了我国现行刑法对单位犯罪的刑罚规定中存在的缺陷 ,并提出了相应的修改建议 :( 1)刑罚种类进行调整 ;( 2 )区别处罚不同类型的单位犯罪 ;( 3)罚金数额应有确定 ;( 4)

唐代刑罚体系的演变——以杖刑为中心的考察

唐代刑罚体系随着社会发展,不断有新的调整,其中的一个重要变化就是先后制定了有别于律文规定的先决杖、脊杖、臀杖、重杖等杖刑,在《唐律》之外,形成了一个刑罚补充体系,以格的形式颁布实施。它们和各种主刑相结合,成为唐代刑罚体系的新内容。大中七年出台的折杖法,只是作为笞、杖刑本刑的执行刑,而笞、杖刑仍是五刑系统的重要组成部分,并没有被废除,依然是唐朝在行的法定刑。

Multimodal Discourse Analysis of Judges’Footing Shifts in Criminal Courtroom

The paper,based on the concept of FOOTING,makes a multimodal discourse analysis of the relationship between the judge’s discourse and his footing shifts in a criminal courtroom.The results show that in the interaction,multimodal resources in judges’discourse include conversational features(prolonging keywords,interrupting,repeating,taking turns,etc.),acoustic ones(ascending F0 for pitches and d B for intensity,transition tracks between consonants and formants of vowels,duration of some keywords in important sentences,etc.),and visual ones(facing other parties,facing the materials,etc.).The multimodal resources activate different judges’footings,including ANIMATOR,ANIMATOR+AUTHOR and ANIMATOR+AUTHOR+PRINCIPAL,and identify the judge’s footing shifts in the courtroom.The results also demonstrate that the judge’s footing shifts perform the functions of trial organizing,information confirming,fact investigating,spokesperson of the collegial panel,law educating and so on in criminal trials.

Study on the Escape of the Portuguese Leasing in Macao from Chinese Criminal Law and the Governance by the Government of the Qing Dynasty

After the Portuguese leased in Macao in the mid-period of Ming Dynasty, the Portuguese officials here were asked to comply with the law of China more than once. To the Qing dynasty, the Portuguese still stubbornly refused to obey the law of China and often escaped from Chinese criminal law using briberies. In the case about Huiqian CHEN and the processing in the end of 1743, the fact that the Portuguese often escaped from the law of China was changed, and the principle of the Chinese judicial officials about processing the murders about Chinese killed by foreigners was explicitly defined. In this principle, Chinese significant compromises and concessions to the Portuguese were also included, but the criminal jurisdiction was ultimately controlled by the Government of the Qing Dynasty. Thus, the foreign-related criminal procedures conforming to foreign conditions were revised by the government of the Qing Dynasty according to the actual circumstances of Macao. However, the foreign-related criminal procedures revised by the government of the Qing Dynasty were not honestly observed by the Portuguese. After several major cases occurred in Macao, security rules and regulations were further issued by the government of the Qing Dynasty, in which the judicial control power of the government of the Qing Dynasty in Macao was unequivocally stated.

Identify patterns of criminal law of causality

Understanding the causal relationship between the criminal law should start with the objective nature of behavior and then set out to determine whether there is the causal relationship between behavior and results, and then combine with the perpetrator＇ s subjective guilt to determine whether his conduct is harmful behavior, so as to determine the severity of his criminal responsibility. In criminal law the causal relationship between the harmful behavior and harmful results is an intrinsic, essential contact. Endangering behavior （i.e. reason） is generated with contingency; in criminal law causality itself is a dialectical unity of necessity and contingency. One should correctly distinguish causes and conditions in the cause and effect relationship; one cannot equate a causal relationship in criminal law with constituting crime and undertaking criminal responsibility. Criminal law of causality is the main content of a crime in an objective harm, which reflects the intrinsic link of the harm behavior and harm. Correctly solving the criminal law of causality is important for the solution how much criminal responsibility the armful behavior should bear.

The Difficulties and Outlets of the Theory of Action Liberal in Cause An Additional Discussion about the Improvement of Article 18 and Article 133（1） in China＇s Criminal Law

The theory of action liberal in cause has a long history. But this concept originally did not exist in our country＇s traditional crinainal law. It has caused widespread controversy and discussion after being introduced into Chinese academy of criminal law. From researches on various viewpoints about the theory of action liberal in cause in German and Japanese theories of criminal law, this paper discusses problems such as recognition of the form of a crime of action liberal in cause, the basis of straPoarkeit and how to coordinate with criminal law principles like ＂capacity for responsibility coexists with capacity for act＂. In the end, it puts forward the scheme of modification for relevant legislation of action liberal in cause.

The Criminal Law of Public Order as a Guardian of Public Interest in Terrorist Acts Scenario

Promotion of a model of the criminal law of public order represents an important point of reflection in criminal law doctrine. Public order, as a juridical good, has many predispositions to be exposed to criminal activity, and in this point of view, its special protection through criminal law norms constitutes a major concern of criminal legislation objectives. Criminal legislation （as a regulatory and modifying tool within society） is an intelligent social product It is a concrete expression of the important contribution of society in ensuring qualitative and quantitative relations of the model of public order. The latter finds expression as the object of a subjective right, which cannot be divided from the affirmation made by criminal legislation as a primary juridical good. In this context, the model of public order is associated with that of protection of general interest, in the subjective sense of the right to punish （ius puniendO, implemented by state authorities. In their universal meaning, all criminal offences in one way or another affect the normal functioning of public order, but terrorist acts can violate or impinge upon public order more closely and specifically. While affecting the designated model of public order, terrorist crimes put in question the architecture of the rule of law. In response to the mechanisms of terrorist offences, two main criminalization techniques are elaborated： （1） the classical technique of criminalization; and （2] the enumerative technique of criminalization. Criminal sanctions, by which the repression of this criminal vector is carried out, aim at ensuring not only the survival of human society, but also its cardinal values and interests, as well as the technical and scientific progress.

An Utilitarianist Reading of Criminal Law

Utilitarianism is the branch of philosophy that studies the usefulness of an idea. Among the possible gains and losses, the balance must be positive to reach the intended utility. Criminal law is the most repressive branch of legal system and therefore should be applied sparingly by the state. Its usefulness should be the protection of legal interests and minimal restriction of personal liberty. The lawmaker should seek the best way to achieve this utility with the choice of the most relevant legal interests and less repressive means before appealing to the criminal law. The legal interests protected by criminal law must be the most important ones for a social life in harmony and prohibited behaviors must be injurious or dangerous to those legal interests. The Rule of Law does not authorize criminal prohibitions without a minimum limit that allows citizens to behave according to their wishes, provided that does not harm the interests of other people. This is the calculation that legislator, judge, and interpreter should seek： more protection and less restriction to citizens.

Research on the applicable problems of the rules of the exclusion of the illegal evidences

With the full implementation of the Code of Criminal Procedure, the application of the rules of the exclusion of the illegal evidences is more inclined to the protection of the human rights. However, in the process of the implementation of the new laws, the problems in view of the rules of the exclusion of the illegal evidences are also prominent, which are mainly reflected in the ambiguity of the scope of the application, the start of the program of the exclusion, and the formalization the trial certificates and other aspects. Therefore, in this article, the author starts from the concept of the illegal evidences, and expounds the principles of the exclusion and the abilities of the evidences, and especially explores the abilities of the evidences and the probative forces. From the differences between the two, the author strictly proves the virtualization of the standards, in order to provide the positive solutions for strengthening the exclusionary procedure of the illegal evidences.

Special Knowledge in Criminal Procedure： Essence, Borders, and Role

This article presents attempts to make a comprehensive study of＂special knowledge＂ and to determine its role in the criminal process and criminology nowadays. The concept of special knowledge and its borders, especially the use of its various forms are analyzed. The author considers some controversial provisions in the demarcation of expertise special knowledge from other knowledge （including legal）, and establishes their relationship. The provision for the need to establish certain ＂unification＂ in the use of specialized knowledge, as well as in the appointment and conducting forensic examinations, inviting experts, obtaining advice is made. This also applies to the aspirations of uniform methods, expertise techniques and technology in the application of special knowledge. The use of examination in criminal justice in Ukraine is analyzed and some of the changes associated with the adoption of the new Criminal Procedure Code are considered. The changes in procedures are associated with the desire to transform the traditional regulations and to move to the adversarial criminal process. The necessity of equal procedural opportunities in the use of special knowledge by the prosecution and the defense is argued.

The Development of Forensic Process Model for Criminal Investigation in Three Southern Border Provinces of Thailand

The purpose of this research is to study the process of forensic science execution in order to use crime investigation in three southern border provinces of Thailand, such as the study of problems and obstacles including the factors that affect forensic examination to use criminal investigation in three southern border provinces, offer the guidance in pattern development of forensic sciences examination in three southern border provinces with standard, and are able to use in criminal investigation effectively. Data were collected from all related agencies. The results of this research have showed that executive process of forensic science is used to investigate the crime in three southern border provinces that can be divided the operations into three main issues as following： crime scene examination, evidence testing, autopsy in case of crime scene, and factors which affect forensic work for using in criminal investigation in three southern border provinces of police practitioners. They should have the knowledge about forensic science, commitment, bravery, and cunning work.

Chinese Procuratorialsupervision of the Implementation of Criminal Profile

In the criminal justice system, the criminal execution though is the last part, but with the conviction and sentencing of the system have the same importance. Criminal conviction and sentencing execution is guaranteed to achieve, but also fairness and justice contained in the Criminal Code. In criminal law enforcement issues related to research more deeply refined today, supervision of Criminal changes have also been made to perform individually and have a very important significance. A direct result of the implementation of the activities of Criminal debtor prison of term prison sentences and the way to change the location, and the status of implementation as well as criminal penalties for the personal interests are closely related, and therefore it is a very, important enforcement regime. Under our current legal environment, the high amount of crime, large numbers of people in custody are restdting in criminal arduous tasks. It is coupled with the existing legal provisions for change-flawed execution of supervision that is extremely prone to change in the course of execution carried favoritism, money corruption. Meanwhile, the new introduction of the ＂Criminal Law Amendment eight,＂ is for which the commutation, parole perform content changes made adjustments and changes.But for the first time, it provides for community corrections system officially to be incorporated into China＇ s Criminal Law among but the corresponding lack of prosecutorial oversight and other content specific legal provisions, changes are related to the implementation of community Corrections supervision given probation, parole, probation and other penalties to bring the practical operation of the nroblerns.

Analysis of the concept of the negligence abettor

In Germany, Japan and in the Taiwan Region of our country, there is the long-standing debate about the joint negligence crime, and in the mainland of China, there are many scholars having discussed, but because the provisions on the joint crimes in the criminal law of our country exclude the joint negligence, the relevant discussions are not very sufficient. This paper talks about the views on the relevant issues of the joint negligence crimes, with the provisions on the traffic accident accomplice in the ＂Explanation of several issues concerning the specific application of law in the trial of criminal cases of traffic accidents＂ by the Supreme People＇s Court in 2000 as the starting point, in recognition of the negligent offender, the author further analyzes the constitution of the concept, in order to more clearly define the instigator of the negligent offender.

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA The death penalty and human rights

Human rights are those rights that all human beings should enjoy in reality. The concept is one whose concrete content has evolved over time and diversified across space. While the disappearance of the death penalty is a historical necessity, in China it remains a necessary measure to protect the basic human fights of ordinary citizens. A correct understanding of the provisions of the present Criminal Law would make it entirely possible for us to reduce the actual application of death penalty by 90% in five to ten years. With the easing of social conflict, China may really be able to cease using the death penalty in the foreseeable future and thereby facilitate its disappearance.

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 specific 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 specific 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.

Criteria for determining illegality and the theory of anti-value acts （Handlungsunwert）： with a discussion of the standpoint of contemporary Chinese criminal jurisprudence

The doctrine of illegality serves as a touchstone of criminal law theory, and research into the criteria for determining illegality is of great significance for promoting debate between different schools of thought and for the overall development of Chinese criminal jurisprudence. The theories of anti-value consequences （Erfolgsunwert） and anti-value acts （Handlungsunwert） take different approaches to thinking about the issue of illegality, leading to differences in the scope of establishing what constitutes a crime, the process of determining whether a crime has been committed, the relationship between crime and punishment and the correlation between criminal law and society. The （dualistic） theory of anti-value acts takes into full consideration the social reality and normative anticipations of a given period and gives due weight to the function of criminal law in guiding behavior; it is therefore a rational theory. According to this view of illegality, the act is the core issue determining illegality; infringement of legal interests is simply an element determining the ＂nature of the act.＂ Criminal law does not exist only to provide restitution for injury, but also aims to cultivate citizens＇ consciousness of norms to prevent possible future injury. Contemporary criminal jurisprudence in China should be constructed on the basis of the （dualistic） theory of anti-value acts with a view to responding to the needs of society and promoting normative identification on the part of the general public.

The Resolution of Social Contradictions and Attainment of Societal Governance through the Justice System at the Present Stage——Using the Analytical Framework of Rational Choice Theory

The reality that social contradictions are intensifying in some parts of China has revealed some inescapable defects in the current stage of our criminal justice system and has presented new challenges to criminal justice. Justice is a crucial factor in effective linkages between social governance and the path to the rule of law, and the attainment of good social governance through justice is a basic marker of a rule of law society. Using the rational choice framework to examine representative individual cases, we can see that theories of participatory governance, self-governance and polycentric governance provide an approach to the interpretation of extreme social contradictions and the reduction of social conflicts, thus constituting a theoretical support and guiding direction for the reform of the judicial system. This will enable us to create a dispute resolution mechanism consistent with the concept of societal governance and judicial principles.

Research on the Legal Attributes and Values of Forensic Testimony in Criminal Proceedings from the Perspective of Legal Norms

From the perspective of legal norms, the legal attributes of forensic testimony in the course of criminal proceedings are manifested in two forms： one is the collection of evidence; the other is the exercise of power. However, the values residing in these two legal attributes are not the same. The former emphasizes ＂justice,＂ and the latter, ＂efficiency.＂ An analysis of the legal norms governing forensic testimony in different periods shows that forensic testimony in criminal proceedings is gradually shifting from a pattern dominated by the exercise of power to one characterized by the collection of evidence. However, a genuine return to the essential character of forensic testimony as the collection of evidence must be premised on a change in the value orientation of the Criminal Procedure Law, that is, on a change from ＂efficiency＂ to ＂justice.＂

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA An empirical study of the application of death penalty

This empirical study of legal interpretation takes as its sample all ＂capital crimes＂ from among the Supreme Court＇s exemplary cases. The study finds significant variations in which crimes are construed as being capital crimes, which capital crimes carry the death penalty, and whether the death sentence is carried out immediately. Based on these findings, the author concludes that legal interpretation involves both normative and autonomous judgments, and that the law itself should be clarified to the maximum extent possible so as to bring about a greater degree of standardization in the application of the death penalty.