中美缓刑制度若干问题比较研究

发布时间：2018-03-18 04:39

本文选题：缓刑　切入点：适用制度　出处：《贵州民族学院》2011年硕士论文　论文类型：学位论文

【摘要】：刑罚的人道性、公正性、社会化是人类自身价值珍重的必然要求,刑罚的日益轻缓化催生了缓刑制度,缓刑制度是人类文明进步和刑罚制度发展的产物。自1870年北美波士顿懫用缓刑制度以来,缓刑制度在美国已经历了一百四十余年发展,在长期的司法实践中,已形成一套比较完善且行之有效的缓刑制度。在美国,司法中缓刑的适用率较高,对罪犯适用缓刑所取得的社会效果也较为明显。与美国相比较,我国在1979年刑法中才正式规定了缓刑制度,在司法中的适用也初有成效,并日趋完善。在理论研究上,我国学者对缓刑制度的研究有所滞后,研究的水平相对落后,需进一步拓宽研究的范围和深度,在司法实践中,尽管目前大量的职务犯罪以缓刑的形式而结案,并对职务犯罪适用缓刑进一步作了规制,但总体上缓刑的适用率较低。基于此,笔者通过比较研究的方法,对美国和我国的缓刑制度若干问题进行比较研究,发现优劣,以期进一步完善我国的缓刑制度。本文由四个部分的内容组成:一是比较中美缓刑适用制度。中美两国缓刑的适用范围均过窄,仅限于轻刑的罪犯,有待拓宽;美国的缓刑适用制度中确立了量刑前报告制度,尤其注重人格调查内容,较为合理,值得借鉴。二是比较中美缓刑考察制度。美国设置了专门的缓刑机构以对缓刑实施考察,美国缓刑考察的内容详尽,注重保护缓刑犯的权利。这也是我国缓刑制度的不足。三是比较中美缓刑撤销制度。我国缓刑的撤销条件过于严格和苛刻,没有注重缓刑的个别化特点。另外,应当撤销缓刑中的“情节严重”的具体标准规定模糊,不易司法部门操作。四是中美缓刑制度比较研究的结论。
[Abstract]:The humanity, fairness and socialization of punishment are the inevitable requirements of human being's own value, and the gradual and gentle punishment has given birth to the probation system. The probation system is the product of the progress of human civilization and the development of the penalty system. Since 1870, the probation system has been developed in the United States for more than 140 years, and has been in judicial practice for a long time. Has formed a set of relatively perfect and effective probation system. In the United States, the application rate of probation in the judicial system is higher, and the social effect of applying probation to criminals is also more obvious. Compared with the United States, In 1979 our country only formally stipulated the probation system in the criminal law, the application in the judicature also had the initial effect, and gradually consummated. In the theory research, our country scholar's research to the probation system has lagged behind, the research level is relatively backward. The scope and depth of the study need to be further broadened. In judicial practice, although a large number of job-related crimes are closed in the form of probation at present, and the application of probation to job-related crimes is further regulated, But on the whole, the application rate of probation is relatively low. Based on this, the author makes a comparative study on some problems of probation system in the United States and our country by means of comparative study, and finds out the advantages and disadvantages. In order to further improve the probation system in China, this paper consists of four parts: first, compare the applicable system of probation between China and the United States. The scope of application of probation in China and the United States is too narrow, only limited to the criminals of light punishment, to be broadened; In the application system of probation in the United States, the system of report before sentencing is established, especially the content of personality investigation, which is reasonable and worthy of reference. The second is to compare the system of probation investigation between China and the United States, and the United States has set up special probation institutions to investigate the probation. The contents of the probation investigation in the United States are detailed and the rights of the probation offenders are protected. This is also the deficiency of the probation system in China. Third, it is a comparison between China and the United States on the revocation of the suspended sentence. The conditions for the revocation of the suspended sentence in our country are too strict and harsh. There is no attention to the individualized characteristics of probation. In addition, the specific standard of "serious circumstances" in probation should be revoked, and it is difficult for the judicial department to operate. Fourth, the conclusion of comparative study on the probation system between China and the United States.
【学位授予单位】：贵州民族学院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.1;D971.2

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