The rapid development of artificial intelligence technology and the approaching of the intelligent era have brought a period of great change that challenges and opportunities coexist for contemporary criminal law. The new crime problem in the era of artificial intelligence has become a new research topic, and the issue of intelligent crime needs to be clarified and determined. This immediately instigated the evolution of the contemporary criminal law system, including fundamental changes in the nature of crimes such as social harmfulness, criminal illegality, and penalties, as well as criminal object, objective aspects of crime, subject of crime, and subjective aspects of crime, and has begun to touch the quantitative changes in the system of essential elements of the entire crime. For the conviction of the three main crime forms of artificial intelligent as "tool type" or "object type", it is necessary to take into account the potential of "artificial intelligent" judicial application of traditional crimes, of which could be concluded as "embedded mode" and "specific mode". As for the artificial intelligent "independent type", "constructive mode" is reliable, and the improvement of legislation should not be shelved so to prevent the spillover of criminal risks caused by insufficient supply of criminal law.
The guiding case of discipline and law enforcement is a case with certain guiding significance and reference function formed by refining, summarizing and deepening the research on representative and typical cases through the compilation and review of relevant authorities. Its function is to implement the relevant spirit of the Party Central Committee, make up for the backwardness and lack of openness of discipline inspection and supervision, unify the standards and standards of discipline enforcement, enhance the openness and transparency of discipline enforcement, and play the role of education and publicity of discipline enforcement. The guiding cases of discipline enforcement have the characteristics of integration of discipline and law, and also have the "binding force" of legal source reference. It is urgent to build the system of applicable rules through the improvement of compilation rules, content standard rules, effectiveness responsibility rules and intelligent iterative path, and finally improve the standardization, informatization and intelligence level in the process of discipline enforcement.
Quantification of the existing theoretical research results related to the expansion of the crime of illegal business operation through the method of literature measurement, so as to describe the dominant academic status of critical views on the expansion of the crime of illegal business operation. To further clarify the orientation inertia and normality of the expansion of negative views on the crime of illegal business operation; To summarize and refine the critical views, and deeply review the internal logic and thinking path; To clarify the wanton extension and "natural growth" of order in the expansion of illegal business crime, so as to bridge the "crack" between negative evaluation and positive demand existing in theory and practice, and complete the reflection based on the critical view of illegal business crime.
The system construction of compulsory reporting of violations on minors in China has formed a system background with local color, including social governance ability, social culture and organizational strength based on itself. In contrast, the system has more mature practical experience abroad. According to the positive and negative feedback in the compulsory reporting system of infringements on minors in the United States, Australia and other countries, and in combination with the local social reality, a compulsory reporting system of infringements on minors with local characteristics should be established. Among them, limiting the subject of obligation, expanding the content of obligation, and relying on the procuratorial system are the local paths worth sticking to; To clarify the consequences of responsibility and highlight individual reporting obligations, we need to learn from the experience of the United States, Australia and other countries; Type implementation subject and clear report scope are the long-term goals that need to be improved through legislation. In the long run, to improve the operation procedure of compulsory reporting of violations against minors, we need specialized independent institutions, but we should also pay attention to the practical path and give play to the transitional role of the procuratorial system in promoting the construction of the system.
Juvenile delinquency has always been the focus of attention from all walks of life. It is the ardent expectation of the whole society that the juvenile delinquency will return to the society smoothly and no longer commit crimes. Juveniles have strong plasticity, and the reform effect of single punishment and non-penalty punishment methods is limited, while the juvenile care system just plays a role in making up for the defects. Taking age and psychological maturity into account, it is more reasonable to define a teenager as a person who has reached the age of 12 but not 18, and an adult who has reached the age of 18 but not 22 who meets certain criteria can be regarded as a teenager. It is necessary to analyze the nature of juvenile care system from the perspective of school care, family care and community care. There are several problems in the current juvenile care system in China, such as the lack of unified normative provisions, the narrow scope of the object of care, the scientific selection of the executive body of care, and the unclear effect of juvenile care. Therefore, we should timely formulate unified and standardized laws, expand the scope of application of the juvenile care system, improve the scientific nature of the selection of the executive body of the care system, and enhance the effect of the juvenile care system, so as to improve the juvenile care system in China, and promote the juvenile delinquent to transform themselves and return to society in a timely manner.
Purpose restriction is an important method to supplement the hidden loopholes of the law in accordance with the legal purpose. The purpose of the law is divided into the purpose of the legal provisions and the purpose of the legal code. Purpose restriction includes three basic types: from guilty to innocent, from serious crime to minor crime, and from aggravated crime to basic crime. Purpose restriction can be carried out from the perspective of protecting legal interests. At the level of criminal intention, purpose restriction can be carried out from the perspective of criminal purpose. At the level of illegality, purpose restriction can be carried out from the perspective of legal conflict.
Students′ Cyberbullying belongs to the combination of tort and offensive speech. The regulation should maintain the protection of minors’ rights and interests and the communication order in public space, and coordinate the conflict between the restriction of offensive speech and the protection of freedom of speech. The three existing regulation modes at home and abroad（private regulation, cooperative regulation and legal liability regulation） have their own advantages and disadvantages, which should not be absolute. China should apply the dual modes of cooperative regulation and legal responsibility regulation in coordination: first, follow the auxiliary principle of government regulation and advocate the gradual and multi-level regulatory responsibility allocation structure; The second is to introduce the meta regulation principle of network service provider review to make its gatekeeper responsibility allocation realize the coordination of information control and user rights protection; Third, establish the restorative justice principle of school discipline, pay attention to expanding the educational field and repairing the relationship between students.
Strengthening discipline construction is a major task after the reform of the national supervision system. The history and practice of our discipline inspection system provide very good foundation conditions for the development of discipline inspection. With the improvement of the discipline inspection and supervision system and the advancement of the reform of the national supervision system, the construction and development of discipline inspection and supervision will be increasingly mature. At present, discipline of discipline inspection and supervision, as an independent first-level discipline under the category of law, is faced with problems such as discipline construction conditions, second-level discipline setting, personnel training, discipline construction mode and so on. Therefore, it is necessary to construct and develop a scientific and mature discipline system of discipline inspection and supervision from the aspects of standardizing the basic discipline system, innovating the characteristic and advantageous discipline, optimizing the professional talent training program, and coordinating theory and practice.
The criminal legislation of the crime of obstructing safe driving is facing not only the crisis of diluting the legal interests of the criminal law with other prevention laws, but also the legitimacy of the torture caused by the virtual illegal elements and the unfair setting of penalty. It is urgent to improve and strengthen the methods and paths of objectively imputing to the behavior of obstructing safe driving theoretically. Based on the objective imputation methodology, it can effectively promote the scientific objective imputation of the crime of obstructing safe driving by identifying the law interests and giving full play to the functions of legal interests. By understanding the value aspect of the legal interest of this crime as "protecting the freedom and safety of travel of citizens" and limiting the existence aspect of the legal interest of this crime to "trust interest in the field of transportation", the basis of criminal imputation of "violent behavior" and "seizing control behavior" of this crime can be established in the dimension of judicial theory. In the dimension of legislation, the flaw of the regulation clause of this crime driver in the type of behavior and the setting of penalty is reflected.
The long-standing concept that guilt must be punished and the criminal policy of criminalization reflect strong instrumentalism of criminal law. Although it is beneficial to social defense, it is not good for human rights protection. On the one hand, the legislation of preventive criminal law indeed serves to prevent crimes. On the other hand, it cannot play the preventive role of penalty in the cases that offenders who do not need to be held criminally responsible or have no need to apply the penalty are imposed penalties. That is against the requirements that penalty should be personalized and precise. Effective crime governance cannot be accomplished by merely expanding the penalty scope through legislation to “block” crime; instead, attention should also be paid to “drain” the social problems caused by crime from the reduction of penalties. In view of the fact that the current criminal legislation cannot meet the practical needs of penalty restriction, the following recommendations should be taken into consideration.On the one hand, it is necessary to establish and improve the system of leniency for confessions and punishments, criminal compliance and non-penalization measures in the criminal law.On the other hand, it is necessary to enhance the discretion of prosecutors and establish the suspension of judgment system in the procedural law.
Punitive damages for public Interest litigation in consumption field is widely used.In the field of minor protection, there also have many successful explorations.With the improvement of top-level design, The popularization and application of the punitive damages for public Interest litigation for juveniles should be certain.As a consequence, there is necessary to summarize the punitive damages for public interest litigation for juveniles in application field, amount determination and belongs.With the guide of prevention and punishment, Standardizing the mechanism configuration and use of punitive damages.
【主题导引】2020年以来，人工智能领域立法连续三年列入全国人大常委会年度立法计划，其重要性不言自明。随着元宇宙技术与数字经济的高速发展，人工智能不再局限于传统计算机科学研究中，开始向语言识别、图像识别、自然语言处理和人文社科等领域拓展。在知识快速更新的当下，诸如人工智能刑事责任、刑法适用、归责路径等人工智能衍生问题也正被学界广泛讨论。人工智能是一门极富挑战性的科学，从刑法学角度对其进行分析与规制是智能化时代的必然趋势。因此，本刊特邀数名专家学者对当前人工智能领域的刑法问题进行进一步研讨，以多维研究结构为基础，以期在知识动荡中推进“人工智能刑法学”的前沿探索进程。
With the continuous deepening of the pilot work of criminal compliance reform of enterprises in China, the shortcomings of insufficient substantive law support behind the judicial dividends given to enterprises involved in cases have gradually become prominent. In China, there are problems such as unclear determination of unit will, inconsistent standards for criminalization of unit crimes and natural persons, and different punishments for the same crime, resulting in the existing unit crime system being unable to play a positive incentive effect on the pilot work of enterprise criminal compliance reform. "Letting go of the enterprise" and "letting go of the entrepreneur" is contrary to the concept of criminal compliance and is suspected of violating the principle of proportionality of criminal responsibility and punishment; As a statutory sentencing circumstance in China, the voluntary surrender system has not been reasonably used in the pilot work of corporate criminal compliance reform. In order to solve the above dilemma, it is necessary to explore the justification basis of the existing pilot work of corporate criminal compliance reform in substantive law. After using the organizational responsibility model to separate the will of the unit and the will of natural persons, effective prior compliance can be regarded as the cause of illegal obstruction of the enterprise, and the enterprise will be criminalized from the subjective level; Ex-ante compliance with insufficient effectiveness can also be regarded as a sentencing incentive mechanism for enterprises not to prosecute or lenient punishment. Ex-post compliance can be regarded as a preventive incentive mechanism for enterprises, in which it is necessary to pay attention to whether the enterprise has self-disclosure behavior, whether it voluntarily submits a compliance plan and carries out compliance rectification, whether it spontaneously repairs legal benefits, and comprehensively considers the discretion of preventive punishment. It should be emphasized that not all enterprises can be called "organizational bodies", for many small and micro private enterprises in China, the protection of private entrepreneurs is equivalent to the protection of private enterprises, so when necessary, entrepreneurs also need to be given preferential treatment in sentencing.
In order to enhance the coordination with the new Securities Law, the crime of manipulating securities and futures markets has been jointly amended in the Amendment（11th） of Criminal Law. Among them, the addition of three new market manipulation acts of this crime is to clarify the way of its behavior. However, this does not mean that the provisions of the mode of conduct of the crime before the amendment violate the principle of specificity. It is still necessary to systematically comb and clarify the specific connotation, judgment standard and realization path of the principle of specificity. In addition, the concept of criminalization should be redefined in the context of recognizing criminalization in legislation and criminalization in judicature. The addition of three behavior modes in this crime is the amendment of criminal law, but it is not criminalization in legislation. On the relation between criminal law amendment and criminal law interpretation, the end of criminal law interpretation is the starting point of criminal legislation（criminal law amendment）. However, the starting point of criminal legislation（criminal law amendment） is not necessarily the end point of criminal law interpretation. Within the scope of the interpretation of criminal law, unless it is based on significant consideration of value, criminal legislation does not need to be amended to give sufficient space to the interpretation of criminal law. The provision of the bottom line clause in this crime provides sufficient legal supply for the new criminal regulation of manipulation of securities and futures market behavior, and is also the difficulty of the application of this crime. In the mainstream view, there are many defects in the interpretation rules of the pocket clause, such as confusion of concepts, confusion of standards, and difficulty in taking into account formal rationality and substantive rationality. We should reconstruct the interpretation rules of the bottom clause and advocate the relative subordination theory of the bottom clause.
China′s juvenile protection legislation lacks the concept of systematic coordination, which leads to the imperfect juvenile protection network and the imperfect top-level design and legislative framework of national child protection. It is necessary to construct a coordinated juvenile legal protection system. Starting from the legal basis of the concept of systematic coordination, this paper combs China′s juvenile protection legislation, analyzes the main problems of China′s current legal protection of minors, and believes that China urgently needs to strengthen the concept of maximizing children′s interests, improve children′s rights, children′s welfare and children′s participation, establish special institutions for child protection, empower juvenile justice social workers, and weave a more detailed legal protection network, Promote the improvement of the macro strategy of juvenile protection legislation.
In order to ensure the healthy growth of young students and the management order of schools, it is necessary to give schools the search power, but this power may conflict with students′ privacy right, and the two need to be coordinated. Through T.L.O. and other cases, the United States has determined the constitutional attribute of schools′ search power, set a lower starting standard of it than of the search of law enforcement agencies, and thus established the basic institutional framework for schools to exercise the search power. The United States has made necessary restrictions on the search conducted by schools in the two scenarios of specific suspicion and no specific suspicion through jurisprudence. In addition, it has also appropriately protected students′ privacy right through the provisions of relevant written laws, in order to achieve the coordination between school search power and students′ privacy right. Referring to the experience of the United States, China should make it clear that schools should have sufficient educational management means, including search power, and provide necessary procedural simplification and institutional protection for the exercise of schools′ search power. However at the same time, the principle of proportionality should be used to restrict school search power, so as to achieve the necessary balance between school search power and students′ privacy right.
When the whole crime analysis mode is used to determine the intention of the crime of helping information network crime, the cognition problem of "serious circumstances" and the phenomenon of "knowing negligence under criminal presumption" cannot be explained reasonably, resulting in the dilemma of the intentional determination of this crime. The factor analysis method which is completely different from the whole crime analysis mode can solve this problem effectively. Under the factor analysis model, the establishment of intention only requires the doer to be "aware" of the illegality of the constitutive elements, and the subjective mentality of other elements of criminal facts is not concerned. In this regard, when the doer is "aware" of the illegality of his helping behavior and the network crime of others, "knowing" in "knowing others to use the information network to commit a crime" does not affect the intentional determination of this crime even if it is negligent due to criminal presumption. Among the "serious circumstances", except for those which are closely related to helping the illegality of the behavior, the intention mentality is required, while the others only need the negligent mentality.
‘Violation of State Regulations’ is a prerequisite for determining that an act constitutes offence of the crime of illegal business operations, but it is not the only condition. In addition, it is necessary to consider whether the behavior conforms to the four behaviors that stipulated in Article 225 of the Criminal Law. Even if the act violates state regulations and conforms to the behaviors that stipulated in Article 225 of the Criminal Law, it does not necessarily constitute offence of the crime of illegal business operations because there is also a need to consider whether there is any legal exception. The precondition for the defendant to bear criminal responsibility of the crime of illegal business operation based on judicial interpretation is that the defendant’s behavior complies with the provisions of judicial interpretation.
In the process of the reform of the national supervision system, the supervisory organs have formed an integrated mechanism to perform their duties and exercise their powers based on the provisions of the Constitution and laws.the supervision power is based on the background of supervision integration and the central authority. Under the influence of this aspect, the decision-making mechanism, implementation mechanism and coordination mechanism of supervision power are stable and orderly. The decision-making mechanism is embodied in democratic centralism and decision-making according to law; The enforcement mechanism is embodied in the system of exercising power according to law, the system of subordinating orders to orders, and the system of division of labor and cooperation; The coordination mechanism is embodied in the legal coordination system, the coordination and restriction system, and the joint system. Grasping the operation logic of supervision power in the integration of supervision is of positive significance for building a centralized, unified, authoritative and efficient national supervision system with Chinese characteristics.
In American judicial practice of algorithm-assisted sentencing, the auxiliary status of algorithms, the discretionary right of judges and the litigation position of defendants is controversial. There are potential risks associated with algorithmic tools, including intrinsic risks such as the inherent bias of algorithms and the opacity of their procedures, as well as the institutional risk of the absence of a normative system for algorithm-assisted sentencing. These risks not only severely limit the defendant’s right to be informed of the algorithm, but also leave the sentencing discretion assisted by the algorithm unrestrained and hinder the achievement of procedural justice. In order to achieve fair sentencing both in substance and in procedure, the algorithm-assisted sentencing should be regulated. At the algorithmic level, the principle of algorithmic openness should be adhered to, and it is supposed be clear that trade secrets should not prevent the algorithm from being disclosed, and the algorithmic fairness should be promoted with standards of consistency and algorithmic traces. At the level of litigation, a specific bundle of rights is required to be constructed for the right of algorithmic information, and the rules of evidence for algorithms distinguish between the standard of proof and the burden of proof allocated by the prosecutor that raises the evidence and the defendant that objects.
