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引用次数: 1
摘要
解决问题的法庭和恢复性司法方案为应对刑事司法过程中反复出现的问题提供了重要的新选择。但它们远不止于此。它们预示着一种新的刑事司法程序理论,从根本上挑战了传统的说法。虽然类似于解决问题的法院和恢复性司法的做法长期以来一直在刑法理论和审判程序的范围之外或之下运作,但在过去的几十年里,这些做法已经脱颖而出,现在得到了成熟理论的支持,这些理论有可能取代传统的刑事责任、刑事责任以及刑事司法程序的核心特征。新理论的基础是监管理论,其目的与其说是执行法律,不如说是确保遵守法律,以促进减少危害和恢复社会秩序。在约翰•布雷斯韦特(John Braithwaite)的重要著作《恢复性司法与响应性监管》(Restorative Justice and Responsive Regulation)的开篇几章中,这种新发展的体现最为明显。在这本书中,Braithwaite提供了一个全面的新刑事司法程序理论,该理论基于监管理论的最新发展,尤其是Braithwaite帮助发展的响应性监管。这种模式在刑事司法过程的任何近期发展中都有不同程度的隐含意义,在本文中,我认为它有可能取代经典的刑法理论。
Problem-solving courts and restorative justice programs provide important new alternatives to cope with recurring problems in the criminal justice process. But they are much more. They are harbingers of a new theory of the criminal justice process that challenges traditional accounts in fundamental ways. Although practices akin to problem-solving courts and restorative justice have long operated outside or below the radar of the theory of criminal law and the adjudicative process, over the past few decades these practices have come to the fore and are now supported with full-blown theories, which threaten to displace traditional accounts of criminal responsibility, criminal liability, and indeed the core features of the criminal justice process. The new theories are based on theories of regulation, where the objective is not so much to enforce the law as it is to secure compliance to the law in order to facilitate harm reduction and restore social order. Nowhere is this new development so clearly seen as in the opening chapters of John Braithwaite’s important book, Restorative Justice and Responsive Regulation. In this book, Braithwaite offers a full-throated theory of the new criminal justice process that is based on recent developments in regulatory theory and, most particularly, responsive regulation, which Braithwaite helped to develop. This model is implicit to varying degrees in any number of recent developments in the criminal justice process, and in this paper, I argue it has the potential for displacing the classical theory of criminal law.
期刊介绍:
Focused on examinations of crime and punishment in domestic, transnational, and international contexts, New Criminal Law Review provides timely, innovative commentary and in-depth scholarly analyses on a wide range of criminal law topics. The journal encourages a variety of methodological and theoretical approaches and is a crucial resource for criminal law professionals in both academia and the criminal justice system. The journal publishes thematic forum sections and special issues, full-length peer-reviewed articles, book reviews, and occasional correspondence.