China’s existing punishment system is rational in that it accords with realities and is based on historical continuity.Any adjustments should only be premised on maintaining its basic framework and upholding the spir...China’s existing punishment system is rational in that it accords with realities and is based on historical continuity.Any adjustments should only be premised on maintaining its basic framework and upholding the spirit of the rule of law while promoting equitable human rights protection and efficient social governance.That is,the administrative detention stipulated in such administrative laws as the Public Security Administrative Penalties Law should be abolished;the type of penalty in these laws should optimized;and at the same time all penalties aimed at depriving people of their liberty should be transferred to the Criminal Law.Whether deprivation of liberty is involved should be made the criterion for distinguishing the range of adjustments to the Criminal Law and those administrative laws that stipulate penalties.Therefore,judgments of the punishability(strafbarkeit)of criminal penalties should be made the main basis for adjusting the de jure boundaries of the scope of the Criminal Law.We should develop a rational and balanced criminalization path and a reasonable and just system of punishment.展开更多
Following the Enlightenment,the principle of human rights protection promoted the transition of criminal justice systems from“punitiveness”to“penal humanitarianism.”However,in the second half of the 20th century,t...Following the Enlightenment,the principle of human rights protection promoted the transition of criminal justice systems from“punitiveness”to“penal humanitarianism.”However,in the second half of the 20th century,the United States and the United Kingdom witnessed the rise of“new punitiveness,”which is characterized by mass incarceration,a punitive turn in community supervision,and numerous collateral consequences of criminal offences.New punitiveness did not emerge from a unified movement or agenda but was driven by changes in crime control philosophies,adjustments in criminal laws,and the initiation of criminal justice campaigns against a backdrop of perceived severe public safety deterioration.Its deeper causes can be traced to the dominance of neoliberalism in economics,the unprecedented alignment of political elites and public attitudes under electoral and partisan politics,and traditional class control mechanisms targeting specific identity groups.Studying new punitiveness can offer valuable insights for identifying potential risks in China’s criminal justice system at both theoretical and practical levels,while providing methodological inspiration for advancing interdisciplinary research.展开更多
Although criminal law as a positive branch of law has been established at the early stage of founding the first states,scientific analysis of basic terms and institutes of criminal law began only in the 18th and the 1...Although criminal law as a positive branch of law has been established at the early stage of founding the first states,scientific analysis of basic terms and institutes of criminal law began only in the 18th and the 19th century.At the same time more natural and social sciences have been developed looking for the answers to the following questions:(1)what are the causes of crime?(2)what is the baseline of criminal responsibility?and(3)what are the measures that state should implement towards the criminal offences’perpetrators?In answering these questions series of scientific trends and understandings are developed in order to analyse forms of social reactions to crime in different ways,and this paper elaborates that.展开更多
The Larry Nassar scandal at Michigan State University is the worst and most widespread case of childhood sex abuse in this nation’s history to date,affecting over 150 young girls and women.This article asks:What were...The Larry Nassar scandal at Michigan State University is the worst and most widespread case of childhood sex abuse in this nation’s history to date,affecting over 150 young girls and women.This article asks:What were the structural and ideological mechanisms,policies,and practices that enabled this widespread abuse over a thirty-year period?Louis Althusser’s Marxist theory of Ideological State Apparatuses(and feminist responses to this theory)is useful in explaining how state-making institutions-media outlets,universities,athletic organizations,and family units-are not only produced and reproduced along class lines,but also with respect to gendered power dynamics.By examining the patriarchal nature of ISAs,one can begin to understand how Larry Nassar was for so long shielded from suspicion and criminal prosecution by the institutions that employed him.展开更多
Drawing upon a concept developed by Fei Xiaotong, this article offers a preliminary theory for conceptualizing the regulation of criminal acts in imperial China. Centred upon the concept of a ＂differential mode of cr...Drawing upon a concept developed by Fei Xiaotong, this article offers a preliminary theory for conceptualizing the regulation of criminal acts in imperial China. Centred upon the concept of a ＂differential mode of criminalization,＂ this article argues that the Confucianization of law in traditional China emphasized without ambiguity the implications of the closeness/remoteness in human rela- tionships-the measure of distance conditioned upon the two main loci in everyday life, namely blood and non-blood relationships. This differential mode of criminalization fits into the Confucian imagery of a harmonious society.展开更多
The judicial application of digital evidence in criminal cases(criminal digital evidence)is an inevitable trend for the digital transformation of criminal proceedings in the macro context of the digital economy.It is ...The judicial application of digital evidence in criminal cases(criminal digital evidence)is an inevitable trend for the digital transformation of criminal proceedings in the macro context of the digital economy.It is characterized by digitization,diversification,and traceability.The application of criminal digital evidence can be divided into two main scenarios:the vertical scenario involving phases such as filing,prosecution,and trial;the horizontal scenario related to specific types of crimes.Criminal digital evidence is primarily applied to handling non-contact crimes,such as cybercrimes.However,the application of such evidence may infringe upon the basic rights of suspects,including their rights to privacy,rights to know,and rights to defense.Furthermore,the diversified and non-systematic nature of digital evidence may lead to challenges in applying the law,particularly with algorithmic“black boxes,”which can result in judicial discrimination and other drawbacks.Therefore,it is necessary to formulate or improve the regulatory framework for criminal digital evidence to ensure its lawful and standardized application.Additionally,judicial authorities must strengthen collaboration in case handling to ensure smooth coordination in collecting and applying digital evidence,thereby realizing its efficient litigation value.Furthermore,it is essential to check and balance the algorithm-based conviction and sentencing to protect the legitimate rights and interests of the parties involved,achieving high-quality human rights protection.展开更多
Online criminal litigation transcends the constraints of physical time and space and changes the logic and path of trial hearings for some criminal cases with the help of technology.However,the leapfrog shift from the...Online criminal litigation transcends the constraints of physical time and space and changes the logic and path of trial hearings for some criminal cases with the help of technology.However,the leapfrog shift from the“physical field”to the“virtual field”has brought great challenges to the effective exercise of the defendant's right to defense.Online criminal justice further highlights the imbalance in the relationship between prosecution and defense in the context of smart justice,and proposes a new topic for protecting the human rights of the prosecuted.The introduction of online criminal litigation in judicial practice is intended to achieve justice in a faster and more convenient way.However,the dissipation of the ritualized remote hearings tends to undermine the effectiveness of the defense and impair the defense's ability to cross-examine evidence,while the technically advantageous public authorities can aggravate the barrier to the defense's meeting and reading the case file.The root cause is that technological power instrumentalism overemphasizes pragmatism and the pursuit of truth under the position of authority,thus diluting humanistic care for the subject of litigation.In order to resolve the problem with the quality and effectiveness of the right to defense in remote hearings,it is necessary to transform online criminal litigation from a“practical technical tool”to a“convenient auxiliary method,”and appropriately weigh the limits of pursuing truth against human rights protection in special scenarios.Meanwhile,it is also feasible to provide technical care for the defense and strengthen its ability to cross-examine evidence.Moreover,a covert communication platform should be furnished for the defender's online meeting to actively strengthen the protection of the defendant's right to defense.展开更多
Domestic violence is a serious threat to the basic human rights of family members,especially victimized women.In order to effectively prevent domestic violence,the criminal law needs to respond in an appropriate and t...Domestic violence is a serious threat to the basic human rights of family members,especially victimized women.In order to effectively prevent domestic violence,the criminal law needs to respond in an appropriate and timely manner.However,the traditional criminal governance model suffers from the problem of the lagging involvement of public power.At the same time,the public-private partnership governance model,based on the personal safety protection order system stipulated in the Anti-domestic Violence Law of the People's Republic of China,is also flawed in its institutional design and specific implementation.The criminal governance model for domestic violence should be guided by the view of positive criminal law,and the governance path should be furtheroptimized from two aspects:strengthening the foundation of the public-private cooperation governance model and deepeningthe criminal-civil interface.This will help to fully protect the legitimate rights and interests of victims of domestic violence.展开更多
The medical device and pharmaceutical industries include a range of drugs,machines,instruments,and apparatuses used to prevent,diagnose,treat disease and illness,or aid in rehabilitation for patients,and are expected ...The medical device and pharmaceutical industries include a range of drugs,machines,instruments,and apparatuses used to prevent,diagnose,treat disease and illness,or aid in rehabilitation for patients,and are expected to grow substantially in the coming years.However,they are often targets of criminal organizations who manufacture and profit from fraudulent products,infiltrating the market with counterfeit medical supply chains.In this paper,we discuss and analyze the extent and nature of this problem and make suggestions for mitigation and prevention of this worldwide challenge.Ultimately,we argue that a holistic approach is essential to addressing this problem,including the creation and dissemination of reliable and good quality data,developing healthcare systems to be more robust,establishing/enhancing intra‐and international cooperation around this issue,and employing effective technological solutions,such as digital tracing.展开更多
Advances in technology require upgrades in the law. One such area involves data brokers, which have thus far gone unregulated. Data brokers use artificial intelligence to aggregate information into data profiles about...Advances in technology require upgrades in the law. One such area involves data brokers, which have thus far gone unregulated. Data brokers use artificial intelligence to aggregate information into data profiles about individual Americans derived from consumer use of the internet and connected devices. Data profiles are then sold for profit. Government investigators use a legal loophole to purchase this data instead of obtaining a search warrant, which the Fourth Amendment would otherwise require. Consumers have lacked a reasonable means to fight or correct the information data brokers collect. Americans may not even be aware of the risks of data aggregation, which upends the test of reasonable expectations used in a search warrant analysis. Data aggregation should be controlled and regulated, which is the direction some privacy laws take. Legislatures must step forward to safeguard against shadowy data-profiling practices, whether abroad or at home. In the meantime, courts can modify their search warrant analysis by including data privacy principles.展开更多
This article addresses issues regarding the transmission of HIV;without the combination antiretroviral treatment (cART), HIV causes a fatal outcome of those infected in most cases. First, legal issues: For years, cont...This article addresses issues regarding the transmission of HIV;without the combination antiretroviral treatment (cART), HIV causes a fatal outcome of those infected in most cases. First, legal issues: For years, controversial discussions have dealt with the subject of the legal classification of HIV infection, such as “… criminalization of HIV exposure might limit access to and uptake of HIV prevention services…” Based on the rule of law of a constitutional state, we explain the legal principles that serve to protect the legal rights of its citizens. The state has to protect its citizens from harm by other people. The prosecution and conviction of a specific person for a proven HIV infection are legal. Therefore, general decriminalization of HIV infection would undermine the right of thereby harmed citizens to compensation. Second, HIV prevention strategies: Based on the Test and Treatment Strategy (TASP)1, controlled studies were undertaken to find out which framework conditions could improve their benefit. We outline concepts that can help to curb the still ongoing spread of HIV: By providing early HIV diagnosis and ongoing HIV care services as part of updated education and prevention campaigns. Also, concerted, comprehensive campaigns are required to demonstrate further impacts of HIV infection: Both on the quality of life of infected individuals due to the development of non-communicable diseases and the increasing burden to societies as a whole.展开更多
Australia is an apt landscape upon which to measure the success of mandatory testing of HIV and sexually transmissible infections (STIs) among sex workers. Mandatory testing is implemented in some Australian jurisdict...Australia is an apt landscape upon which to measure the success of mandatory testing of HIV and sexually transmissible infections (STIs) among sex workers. Mandatory testing is implemented in some Australian jurisdictions and not others, allowing for a comprehensive comparison of the outcomes. It is apparent that mandatory testing of HIV and STIs among sex workers in Australia has proven to be a barrier to otherwise successful HIV and STI peer education, prevention and free and anonymous testing and treatment. The outcomes of mandatory testing are counterproductive to reducing HIV and STI rates, do not reach the intended target group, are costly and inefficient, and mandatory testing has proven to be a very difficult policy to repeal once in place. Scarlet Alliance, the Australian Sex Workers Association, as well as numerous academics and policy leaders in Australia recommend against mandatory testing of HIV and STIs among sex workers.展开更多
基金This article is part of the results of the 2016 National Social Science Fund of China project“Research on the Theoretical Model and the Institutional Practice of Amendments to China’s Criminal Law”(16ZDA061).
文摘China’s existing punishment system is rational in that it accords with realities and is based on historical continuity.Any adjustments should only be premised on maintaining its basic framework and upholding the spirit of the rule of law while promoting equitable human rights protection and efficient social governance.That is,the administrative detention stipulated in such administrative laws as the Public Security Administrative Penalties Law should be abolished;the type of penalty in these laws should optimized;and at the same time all penalties aimed at depriving people of their liberty should be transferred to the Criminal Law.Whether deprivation of liberty is involved should be made the criterion for distinguishing the range of adjustments to the Criminal Law and those administrative laws that stipulate penalties.Therefore,judgments of the punishability(strafbarkeit)of criminal penalties should be made the main basis for adjusting the de jure boundaries of the scope of the Criminal Law.We should develop a rational and balanced criminalization path and a reasonable and just system of punishment.
基金a phased result of the“National Funded Postdoctoral Researchers Program”(GZC20230818).
文摘Following the Enlightenment,the principle of human rights protection promoted the transition of criminal justice systems from“punitiveness”to“penal humanitarianism.”However,in the second half of the 20th century,the United States and the United Kingdom witnessed the rise of“new punitiveness,”which is characterized by mass incarceration,a punitive turn in community supervision,and numerous collateral consequences of criminal offences.New punitiveness did not emerge from a unified movement or agenda but was driven by changes in crime control philosophies,adjustments in criminal laws,and the initiation of criminal justice campaigns against a backdrop of perceived severe public safety deterioration.Its deeper causes can be traced to the dominance of neoliberalism in economics,the unprecedented alignment of political elites and public attitudes under electoral and partisan politics,and traditional class control mechanisms targeting specific identity groups.Studying new punitiveness can offer valuable insights for identifying potential risks in China’s criminal justice system at both theoretical and practical levels,while providing methodological inspiration for advancing interdisciplinary research.
文摘Although criminal law as a positive branch of law has been established at the early stage of founding the first states,scientific analysis of basic terms and institutes of criminal law began only in the 18th and the 19th century.At the same time more natural and social sciences have been developed looking for the answers to the following questions:(1)what are the causes of crime?(2)what is the baseline of criminal responsibility?and(3)what are the measures that state should implement towards the criminal offences’perpetrators?In answering these questions series of scientific trends and understandings are developed in order to analyse forms of social reactions to crime in different ways,and this paper elaborates that.
文摘The Larry Nassar scandal at Michigan State University is the worst and most widespread case of childhood sex abuse in this nation’s history to date,affecting over 150 young girls and women.This article asks:What were the structural and ideological mechanisms,policies,and practices that enabled this widespread abuse over a thirty-year period?Louis Althusser’s Marxist theory of Ideological State Apparatuses(and feminist responses to this theory)is useful in explaining how state-making institutions-media outlets,universities,athletic organizations,and family units-are not only produced and reproduced along class lines,but also with respect to gendered power dynamics.By examining the patriarchal nature of ISAs,one can begin to understand how Larry Nassar was for so long shielded from suspicion and criminal prosecution by the institutions that employed him.
文摘Drawing upon a concept developed by Fei Xiaotong, this article offers a preliminary theory for conceptualizing the regulation of criminal acts in imperial China. Centred upon the concept of a ＂differential mode of criminalization,＂ this article argues that the Confucianization of law in traditional China emphasized without ambiguity the implications of the closeness/remoteness in human rela- tionships-the measure of distance conditioned upon the two main loci in everyday life, namely blood and non-blood relationships. This differential mode of criminalization fits into the Confucian imagery of a harmonious society.
文摘The judicial application of digital evidence in criminal cases(criminal digital evidence)is an inevitable trend for the digital transformation of criminal proceedings in the macro context of the digital economy.It is characterized by digitization,diversification,and traceability.The application of criminal digital evidence can be divided into two main scenarios:the vertical scenario involving phases such as filing,prosecution,and trial;the horizontal scenario related to specific types of crimes.Criminal digital evidence is primarily applied to handling non-contact crimes,such as cybercrimes.However,the application of such evidence may infringe upon the basic rights of suspects,including their rights to privacy,rights to know,and rights to defense.Furthermore,the diversified and non-systematic nature of digital evidence may lead to challenges in applying the law,particularly with algorithmic“black boxes,”which can result in judicial discrimination and other drawbacks.Therefore,it is necessary to formulate or improve the regulatory framework for criminal digital evidence to ensure its lawful and standardized application.Additionally,judicial authorities must strengthen collaboration in case handling to ensure smooth coordination in collecting and applying digital evidence,thereby realizing its efficient litigation value.Furthermore,it is essential to check and balance the algorithm-based conviction and sentencing to protect the legitimate rights and interests of the parties involved,achieving high-quality human rights protection.
基金the phased result of the Humanities and Social Science Research and Planning Fund Project of the Ministry of Education,titled“Research on Online Dispute Resolution Mechanisms:Theory,Rules,and Practice”(22YJA820036)Research Project on the Historical and Cultural Heritage,Essential Connotation and Mission of the Era of China’s Human Rights Development Path of the Beijing Research Center of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era(23LLFXA055)。
文摘Online criminal litigation transcends the constraints of physical time and space and changes the logic and path of trial hearings for some criminal cases with the help of technology.However,the leapfrog shift from the“physical field”to the“virtual field”has brought great challenges to the effective exercise of the defendant's right to defense.Online criminal justice further highlights the imbalance in the relationship between prosecution and defense in the context of smart justice,and proposes a new topic for protecting the human rights of the prosecuted.The introduction of online criminal litigation in judicial practice is intended to achieve justice in a faster and more convenient way.However,the dissipation of the ritualized remote hearings tends to undermine the effectiveness of the defense and impair the defense's ability to cross-examine evidence,while the technically advantageous public authorities can aggravate the barrier to the defense's meeting and reading the case file.The root cause is that technological power instrumentalism overemphasizes pragmatism and the pursuit of truth under the position of authority,thus diluting humanistic care for the subject of litigation.In order to resolve the problem with the quality and effectiveness of the right to defense in remote hearings,it is necessary to transform online criminal litigation from a“practical technical tool”to a“convenient auxiliary method,”and appropriately weigh the limits of pursuing truth against human rights protection in special scenarios.Meanwhile,it is also feasible to provide technical care for the defense and strengthen its ability to cross-examine evidence.Moreover,a covert communication platform should be furnished for the defender's online meeting to actively strengthen the protection of the defendant's right to defense.
基金a phased achievement of the Tianjin Philosophy and Social Science Planning Project“Systematic Study on the Justified Exoneration”(Project Number TJFXQN20-001)supported by the Fundamental Research Funds for the Central Universities“Research on Criminal Law Regulation of Family Offenses”(Project Number 63222047)。
文摘Domestic violence is a serious threat to the basic human rights of family members,especially victimized women.In order to effectively prevent domestic violence,the criminal law needs to respond in an appropriate and timely manner.However,the traditional criminal governance model suffers from the problem of the lagging involvement of public power.At the same time,the public-private partnership governance model,based on the personal safety protection order system stipulated in the Anti-domestic Violence Law of the People's Republic of China,is also flawed in its institutional design and specific implementation.The criminal governance model for domestic violence should be guided by the view of positive criminal law,and the governance path should be furtheroptimized from two aspects:strengthening the foundation of the public-private cooperation governance model and deepeningthe criminal-civil interface.This will help to fully protect the legitimate rights and interests of victims of domestic violence.
文摘The medical device and pharmaceutical industries include a range of drugs,machines,instruments,and apparatuses used to prevent,diagnose,treat disease and illness,or aid in rehabilitation for patients,and are expected to grow substantially in the coming years.However,they are often targets of criminal organizations who manufacture and profit from fraudulent products,infiltrating the market with counterfeit medical supply chains.In this paper,we discuss and analyze the extent and nature of this problem and make suggestions for mitigation and prevention of this worldwide challenge.Ultimately,we argue that a holistic approach is essential to addressing this problem,including the creation and dissemination of reliable and good quality data,developing healthcare systems to be more robust,establishing/enhancing intra‐and international cooperation around this issue,and employing effective technological solutions,such as digital tracing.
文摘Advances in technology require upgrades in the law. One such area involves data brokers, which have thus far gone unregulated. Data brokers use artificial intelligence to aggregate information into data profiles about individual Americans derived from consumer use of the internet and connected devices. Data profiles are then sold for profit. Government investigators use a legal loophole to purchase this data instead of obtaining a search warrant, which the Fourth Amendment would otherwise require. Consumers have lacked a reasonable means to fight or correct the information data brokers collect. Americans may not even be aware of the risks of data aggregation, which upends the test of reasonable expectations used in a search warrant analysis. Data aggregation should be controlled and regulated, which is the direction some privacy laws take. Legislatures must step forward to safeguard against shadowy data-profiling practices, whether abroad or at home. In the meantime, courts can modify their search warrant analysis by including data privacy principles.
文摘This article addresses issues regarding the transmission of HIV;without the combination antiretroviral treatment (cART), HIV causes a fatal outcome of those infected in most cases. First, legal issues: For years, controversial discussions have dealt with the subject of the legal classification of HIV infection, such as “… criminalization of HIV exposure might limit access to and uptake of HIV prevention services…” Based on the rule of law of a constitutional state, we explain the legal principles that serve to protect the legal rights of its citizens. The state has to protect its citizens from harm by other people. The prosecution and conviction of a specific person for a proven HIV infection are legal. Therefore, general decriminalization of HIV infection would undermine the right of thereby harmed citizens to compensation. Second, HIV prevention strategies: Based on the Test and Treatment Strategy (TASP)1, controlled studies were undertaken to find out which framework conditions could improve their benefit. We outline concepts that can help to curb the still ongoing spread of HIV: By providing early HIV diagnosis and ongoing HIV care services as part of updated education and prevention campaigns. Also, concerted, comprehensive campaigns are required to demonstrate further impacts of HIV infection: Both on the quality of life of infected individuals due to the development of non-communicable diseases and the increasing burden to societies as a whole.
文摘Australia is an apt landscape upon which to measure the success of mandatory testing of HIV and sexually transmissible infections (STIs) among sex workers. Mandatory testing is implemented in some Australian jurisdictions and not others, allowing for a comprehensive comparison of the outcomes. It is apparent that mandatory testing of HIV and STIs among sex workers in Australia has proven to be a barrier to otherwise successful HIV and STI peer education, prevention and free and anonymous testing and treatment. The outcomes of mandatory testing are counterproductive to reducing HIV and STI rates, do not reach the intended target group, are costly and inefficient, and mandatory testing has proven to be a very difficult policy to repeal once in place. Scarlet Alliance, the Australian Sex Workers Association, as well as numerous academics and policy leaders in Australia recommend against mandatory testing of HIV and STIs among sex workers.
