德国保安处分制度研究
发布时间：2019-06-04 09:00
【摘要】：李斯特于1882年在《刑法中的目的观念》一文中第一次提出“保安处分措施”的设想,1933年《惯犯法》将“保安处分措施”正式写入刑法,发展至今,德国保安处分制度与传统刑罚手段并存于德国刑事处罚体系之中,形成了德国刑罚体系的“双轨制”。 以宾丁为代表的德国刑法古典学派所坚持的纯粹“报应性”的刑罚在面对不断恶化的社会治安局面时的束手无策恰恰证明了以李斯特为代表的德国刑法现代学派所倡导的“目的刑罚”的必要性与合理性。“目的刑罚”理论在德国刑法学界所获得的广泛的认可为保安处分措施写入刑法以及保安处分制度的正式建立奠定了理论基础,提供了正当性证明。保安处分制度与传统的刑罚措施,在价值定位、具体制度设置以及适用所追求的目标等方面存在着巨大的差异,在一般对刑罚措施并不存在较大的正当性质疑,但同时对德国保安处分制度存在较多的“侵犯人权”诟病的背景下,对保安处分制度在刑法理论上进行论证的目的就在于使保安处分制度不是以刑罚的定位,而是以保安处分的角度获得自身的正当性。 德国保安处分制度主要包括《德国刑法典》所规定的六种保安处分措施。在保安处分制度所追求的从对具体的犯罪有效预防的角度有力地与犯罪行为作斗争的总体目标的指导下,各个具体的保安处分措施在适用的过程中追求侧重点有所不同的刑事政策目的。但是,六种保安处分措施预防犯罪的刑事政策目的的实现均是以“行为人”为核心,在对其“人身危险性”进行分析确定的基础之上由法院对其判处与其人身危险性及其程度相适应的保安处分措施。在法院对行为人判处保安处分措施,原则上应通过完全的法院审判的程序。在对行为人最终确定判处保安处分之前,法院需要绝对地确信行为人的个人情况已经完全地满足刑法典所归定的形式上以及实质上的条件。在形式与实质条件之间,存在着决定与被决定的关系,即实质条件决定形式条件,而形式条件的确定实际上是对实质条件存在的确证。不管法院对行为人判处何种保安处分措施,均需具备行为人具有相当程度的人身危险性,即行为人在将来很有可能继续犯罪,危害社会的实质条件在整个保安处分措施判处以及执行的过程中,行为人及其人身危险性始终是法院以及执行机关所应关注的重中之重。在执行过程中,如果行为人人身危险性消除或者在程度上有明显的降低,则法院应决定将对行为人判处的保安处分措施缓期执行或者是提前宣告执行结束。由此可见,不管是对行为人判处保安处分措施,对其具体执行保安处分措施,还是决定不再对其执行保安处分措施,均系由行为人的人身危险性所决定。同时,因为行为人人身危险性很大程度上指的是行为人再次犯罪的社会危害性,所以在规定、判处及执行保安处分措施的全过程中,或者说整个保安处分制度的内核就是行为人个人权益的剥夺与社会公共利益的保护之间的衡量与最终的平衡,保安处分制度适用的理想状态也就应该是,以对个人权益的最小的侵害,来达到对社会公共利益保护的目的。
[Abstract]:In 1882, the idea of "measures of security measures" was put forward in the article" The concept of the purpose of security in criminal law ". In 1933, it was the first time to put forward the idea of the measure of security measures". In 1933, the criminal law was formally written into the criminal law. The system of security disposition in Germany and the traditional penalty means were co-exist in the German criminal punishment system. The "double-track system" of the German penal system was formed. In the face of the deteriorating social security situation, the "pure retribution" penalty of the German criminal law classical school, which is represented by Bain, has proved the necessity and the combination of "the purpose penalty" advocated by the modern school of the German criminal law, which is the representative of Liszt. The broad recognition of the theory of "purpose penalty" in German criminal law has laid a theoretical foundation for the formal establishment of the security measures to write to the criminal law and the security disposal system, and provided the legitimacy. It is proved that the security disposition system and the traditional penalty measures have great differences in the aspects of value orientation, specific system setting and the target of the application. In general, the punishment measures do not have a great legitimacy. Doubt, but at the same time, in the background of the more "human rights violation" of the German security disposition system, the purpose of the security disposition system in the criminal law theory is to make the security disposal system not the position of the punishment, but to obtain the right of self in the perspective of the security disposition The German security sanctions regime mainly includes the six guarantees provided for in the German Penal Code Under the guidance of the overall objective of the effective prevention of the specific crime from the perspective of the effective prevention of the specific crime, the specific security measures are different in the application process. The objective of the policy is that, however, the achievement of the criminal policy objectives of the six types of security measures in crime prevention is at the core of the "doer" and, on the basis of the analysis and determination of its "personal risk", the court is sentenced to a protection commensurate with its personal risk and its degree (b) The measures to be taken by the Security Council, in principle, through a full court, in the case of the court's imposition of security measures on the perpetrator The procedure of the trial. Before the final determination of the perpetrator of the security disposition, the court needs to be absolutely certain that the individual's personal situation has fully met the form of the criminal code, as well as the facts The condition of a qualitative condition. There is a relationship between the form and the substance, that is, the condition of the form of the substance, and the determination of the form condition is actually a real condition. The existence of a confirmation that, regardless of the security measures imposed on the perpetrator by the court, the perpetrator is subject to a considerable degree of physical danger, that is, the perpetrator is likely to continue to commit an offence in the future and that the substantive conditions of the society are to be imposed on and held by the entire security disciplinary measure In the course of the line, the risk of the actor and the person is always the subject of the court and the executive organ. In the course of implementation, if the person's personal risk is removed or there is a significant reduction in the degree, the court shall decide to slow down the security measures to be imposed on the perpetrator or to be in advance On the conclusion of the implementation, it can be seen that, in spite of the imposition of security measures on the perpetrator, the specific implementation of the security measures, or the decision to stop the enforcement of the security measures, it is the person's personal risk At the same time, because of the danger of the person's physical danger, it is the social harmfulness of the perpetrator to commit the crime again, so it is stipulated, sentenced and enforced by the security measures In the whole process, or the core of the whole security disposition system is the measurement and the final balance between the deprivation of the individual's rights and the protection of the public interest, the ideal state applicable to the security disposal system should be, in order to protect the individual's rights and interests The minimum harm to the public interest.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D951.6;DD914
本文编号：2492613
[Abstract]:In 1882, the idea of "measures of security measures" was put forward in the article" The concept of the purpose of security in criminal law ". In 1933, it was the first time to put forward the idea of the measure of security measures". In 1933, the criminal law was formally written into the criminal law. The system of security disposition in Germany and the traditional penalty means were co-exist in the German criminal punishment system. The "double-track system" of the German penal system was formed. In the face of the deteriorating social security situation, the "pure retribution" penalty of the German criminal law classical school, which is represented by Bain, has proved the necessity and the combination of "the purpose penalty" advocated by the modern school of the German criminal law, which is the representative of Liszt. The broad recognition of the theory of "purpose penalty" in German criminal law has laid a theoretical foundation for the formal establishment of the security measures to write to the criminal law and the security disposal system, and provided the legitimacy. It is proved that the security disposition system and the traditional penalty measures have great differences in the aspects of value orientation, specific system setting and the target of the application. In general, the punishment measures do not have a great legitimacy. Doubt, but at the same time, in the background of the more "human rights violation" of the German security disposition system, the purpose of the security disposition system in the criminal law theory is to make the security disposal system not the position of the punishment, but to obtain the right of self in the perspective of the security disposition The German security sanctions regime mainly includes the six guarantees provided for in the German Penal Code Under the guidance of the overall objective of the effective prevention of the specific crime from the perspective of the effective prevention of the specific crime, the specific security measures are different in the application process. The objective of the policy is that, however, the achievement of the criminal policy objectives of the six types of security measures in crime prevention is at the core of the "doer" and, on the basis of the analysis and determination of its "personal risk", the court is sentenced to a protection commensurate with its personal risk and its degree (b) The measures to be taken by the Security Council, in principle, through a full court, in the case of the court's imposition of security measures on the perpetrator The procedure of the trial. Before the final determination of the perpetrator of the security disposition, the court needs to be absolutely certain that the individual's personal situation has fully met the form of the criminal code, as well as the facts The condition of a qualitative condition. There is a relationship between the form and the substance, that is, the condition of the form of the substance, and the determination of the form condition is actually a real condition. The existence of a confirmation that, regardless of the security measures imposed on the perpetrator by the court, the perpetrator is subject to a considerable degree of physical danger, that is, the perpetrator is likely to continue to commit an offence in the future and that the substantive conditions of the society are to be imposed on and held by the entire security disciplinary measure In the course of the line, the risk of the actor and the person is always the subject of the court and the executive organ. In the course of implementation, if the person's personal risk is removed or there is a significant reduction in the degree, the court shall decide to slow down the security measures to be imposed on the perpetrator or to be in advance On the conclusion of the implementation, it can be seen that, in spite of the imposition of security measures on the perpetrator, the specific implementation of the security measures, or the decision to stop the enforcement of the security measures, it is the person's personal risk At the same time, because of the danger of the person's physical danger, it is the social harmfulness of the perpetrator to commit the crime again, so it is stipulated, sentenced and enforced by the security measures In the whole process, or the core of the whole security disposition system is the measurement and the final balance between the deprivation of the individual's rights and the protection of the public interest, the ideal state applicable to the security disposal system should be, in order to protect the individual's rights and interests The minimum harm to the public interest.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D951.6;DD914
【引证文献】
相关硕士学位论文 前1条
1 张雄敬;论刑法中的禁止令[D];华南理工大学;2013年
，本文编号：2492613
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