社区矫正的理论基础及制度构建
发布时间：2018-08-21 10:51
【摘要】： 纵观整个刑法发展史不难发现:由严酷走向缓和,是刑罚发展的整体趋势。与之相对应,刑罚的执行亦经历了一个由非社会化到社会化、由封闭走向开放的过程。 社区矫正代表着世界范围内行刑发展的潮流与趋势。为此,2003年7月,我国已在部分地区先期开展了社区矫正试点工作。作为不同于传统重刑主义的新型行刑制度——社区矫正制度在我国才刚刚起步,无论是在刑法理论上还是在司法实践中,都没有形成一套成熟的模式,迫切需要进行深入的理论研究和对可操作性的实践模式进行探索。作为一项探索性研究,本文以法学、社会学等多学科知识为指导,介绍了社区矫正的思想演进、理论价值及我国开展社区矫正的社会基础等,并对各地正在试行的社区矫正模式进行了评析,最后提出了构建适合我国国情的新型社区矫正模式的设想。具体而言,除去引言和结语部分,笔者试图从以下四方面来进行本文的写作: 第一部分:导论。该部分首先从2003年7月10日,两部两院联合下发的《关于开展社区矫正试点工作的通知》着手,提出问题。进而运用历史研究及比较研究的方法,详细论述了开展社区矫正的理论依据。 在该部分,本文重点从七个的不同视角对开展社区矫正的理论依据进行了详尽的理论分析。在对不同视角的理论依据进行阐述分析的过程中,不难得出:社区矫正制度的兴起是刑罚发展的必然结果,是人们在重新审视刑罚与行刑经济化原则的矛盾冲突之后所产生的一种全新的刑罚理念。它的存续正是基于以上多种不同理论的交叉支撑,它产生的理论背景是教育刑理论的兴起,是以人格矫正为前提、以使犯罪人复归社会为目标,集中体现着行刑的人道价值和刑罚的谦抑思想,同时又体现出行刑经济原则和刑事补偿理论,可以说是复归理论的深层展开和行刑社会化理论的必然归宿。 第二部分:论述社区矫正在我国实施的现实必要性和学术可能性。 社区矫正所蕴涵的巨大价值是毋庸置疑的,然而,随即而来的一个重要的问题是,这种源自西方发达国家的行刑模式有无在我国实施的必要性呢?对此,笔者认为社区矫正弱化了犯罪人的“标签效应”,体现了以人为本的人本主义精神,是一种更为人性化的监管方式。它尊重矫正对象的人格尊严,对其实行文明管理并给予相应的人文关怀,使之能尽快健全缺失的社会人格,更好地复归社会;通过充分利用社区、民间组织、志愿者等社会力量,很好的发挥了社区作为基层组织的柔性的社会整合功能,也构建了易于犯罪人再社会化的良好环境;通过解决社区矫正人员在生活、就业等方面遇到的问题,可以弱化其与社会的对立情绪,有利于构建预防和减少犯罪的长效机制,达到维护社会安全稳定的目的,因此在我国具有将其本土化的现实必要性。 社区矫正作为一种社会化、开放性的行刑模式,既是社会经济发展到一定程度的产物,同时,它的实施又必然需要以一定的经济社会条件为支撑。如社会的文明程度、开放程度以及社区对犯罪人的接纳能力和矫正能力等。笔者认为,目前我国已初步具备了开展社区矫正的以下社会现实条件: 社会基础——在当前我国社会,伴随着市民社会与政治国家的逐步分离,二元社会结构模式已初步形成,一个相对独立的市民社会正在成长起来,这为社区矫正的开展提供了必要的社会基础。 社会和舆论根基——犯罪人权利意识的增强和犯罪人权利保护程度的提高,必将为社区矫正理论的发展充当坚实的社会和舆论根基。 学理基础——伴随着我国社会由一元结构向二元结构演变的顺利完成及犯罪人权利意识的增强和犯罪人权利保护程度的不断提高,我国越来越多的刑法学者开始将研究的视角转向犯罪人,开始关注犯罪人的形成原因和对犯罪人的正当处遇问题。刑法学的研究视角从犯罪到犯罪人的转换必将为社区矫正在我国的勃兴奠定坚实的学理基础。 第三部分:通过查阅资料,运用比较研究的方法辩证地阐述我国社区矫正试点工作中的不足。 在为期不长的试点中,社区矫正作为一种新事物其强大的生命力已初见端倪。在解决监狱拥挤问题、节约行刑资源、改造犯罪人、增强刑罚效能等方面取得了较好的成效。但由于我国的社区矫正工作目前尚处在初步探索阶段,所以在试点工作中,无论是在立法层面还是在实践操作中,无论是在实体上还是在程序上,从社区矫正的执行主体法律地位的确认到社区服刑人员的确定,从具体的矫正措施的安排到社区矫正的程序保障都存在不少问题,都需要不断的进行修改与完善,故而本文的另一个写作重点便是接下来的第四部分,即我国社区矫正制度的构建与完善。 第四部分:为完善我国的社区矫正制度,针对第三部分存在的不足,提出自己不太成熟的建议与设想,以期为我国社区矫正制度的构建竭尽自己的绵薄之力。 从第三部分对我国社区矫正实践中存在的问题的相关论述来看,无论是在观念认识层面还是在立法完善方面,我国目前的社区矫正制度都存在不少缺陷与不足。因此,本文重点从如下两个方面来完善我国的社区矫正制度: 1、观念层面的转变——更新刑罚理念;2、立法层面的完善——重构社区矫正法律制度。 从我国社区矫正实践中存在的问题来看,无论是执行内容、执行主体,还是执行程序,问题的关键都在于无法可依。因此,通过立法层面的完善来重构我国的社区矫正法律制度是本部分的论述重点,主要从刑事实体法(刑法)和刑事程序法(刑事诉讼法)两个思考维度对社区矫正的修改与完善进行了阐述。 从刑事实体法(刑法)维度,针对实体法方面存在的问题,本文试图着重以社区矫正对象的不同为研究视角,针对我国现行社区矫正相关立法方面的不足,根据社区矫正试点工作的最高文件《通知》中规定的社区矫正的五种不同适用对象逐一进行修改与完善。 针对刑事程序法(刑事诉讼法)方面存在的不足,笔者从统一刑罚执行机构和整合行刑资源两方面进行了初步设想,以期能够与刑事实体法(刑法)的制度完善相得益彰。
[Abstract]:Throughout the history of the development of criminal law, it is not difficult to find that the overall trend of the development of penalty is from harshness to relaxation.
Community correction represents the trend and trend of the development of execution in the world. Therefore, in July 2003, China has carried out the pilot work of community correction in some areas. As a new execution system different from the traditional severe punishment doctrine, community correction system has just started in China, whether in criminal law theory or in judicial practice. As an exploratory study, guided by multi-disciplinary knowledge of law and sociology, this paper introduces the ideological evolution, theoretical value and social foundation of community correction in China. At last, the author puts forward the idea of constructing a new community correction model which is suitable for China's national conditions. Specifically, apart from the introduction and conclusion, the author tries to write this article from the following four aspects:
The first part is an introduction. This part begins with the "Notice on the Pilot Work of Community Correction" issued jointly by the two courts on July 10, 2003, and raises some questions. Then it discusses the theoretical basis of community correction in detail by using the methods of historical research and comparative study.
In this part, the author makes a detailed theoretical analysis of the theoretical basis of community correction from seven different perspectives. In the process of explaining and analyzing the theoretical basis from different perspectives, it is not difficult to draw the conclusion that the rise of community correction system is the inevitable result of the development of penalty, and it is the people's re-examination of penalty and the economization of execution. After the contradiction and conflict of principles, a brand-new concept of penalty emerges. Its existence is based on the cross-support of the above-mentioned different theories. Its theoretical background is the rise of the theory of educational penalty, which is based on the premise of personality correction, aiming at the return of criminals to society, and embodies the humanistic value of execution and the modesty of penalty. It can be said that restraining thought, reflecting the economic principle of execution and the theory of criminal compensation, is the deep development of the theory of return and the inevitable end-result of the theory of socialization of punishment.
The second part discusses the practical necessity and academic possibility of community correction in China.
The great value of community correction is undoubted. However, an important question is whether it is necessary to implement this pattern in China, which originates from western developed countries. In this regard, the author thinks that community correction weakens the "label effect" of criminals and embodies the spirit of humanism. It respects the personality dignity of the corrected object, carries out civilized management and gives corresponding humanistic care so that it can perfect the missing social personality as soon as possible and return to society better. By making full use of the social forces of the community, non-governmental organizations, volunteers and so on, the community has played a good role as a grass-roots group. The flexible social integration function of the organization also constructs a favorable environment for the re-socialization of criminals; by solving the problems encountered by the community correction personnel in life and employment, the opposition between the community and the society can be weakened, and the long-term mechanism for preventing and reducing crime can be constructed to maintain social security and stability. In China, it is necessary to localize it.
Community correction, as a socialized and open mode of execution, is not only the product of social and economic development to a certain extent, but also the implementation of it must be supported by certain economic and social conditions. China has preliminarily got the following social realities to carry out community correction:
Social Foundation - In the current Chinese society, along with the gradual separation of civil society and political state, the dual social structure model has been initially formed, and a relatively independent civil society is growing up, which provides the necessary social foundation for the development of community correction.
The foundation of society and public opinion, the enhancement of criminal's right consciousness and the improvement of criminal's right protection, will certainly serve as a solid social and public opinion foundation for the development of community correction theory.
Theoretical Foundation-With the smooth completion of the evolution of China's society from a unitary structure to a dualistic structure, the enhancement of criminals'awareness of rights and the continuous improvement of the protection of criminals' rights, more and more Chinese scholars of criminal law begin to turn their research perspectives to criminals, and begin to pay attention to the causes of the formation of criminals and the integrity of criminals. The transformation of the perspective of criminal law from crime to criminal will certainly lay a solid theoretical foundation for the vigorous development of community correction in China.
The third part: Through consulting the data and using the method of comparative study, the author dialectically expounds the deficiencies in the pilot work of community correction in China.
In the short-term pilot, community correction as a new thing, its strong vitality has begun to appear. It has achieved good results in solving the jail congestion problem, saving execution resources, reforming criminals, and enhancing the efficiency of punishment. However, the community correction work in China is still in the preliminary exploration stage, so in the pilot. In the work, whether in the legislative level or in practice, whether in the substantive or procedural, from the confirmation of the legal status of the executive subject of community correction to the determination of community prisoners, from the arrangement of specific corrective measures to the procedural guarantee of community correction, there are many problems, which need to be constantly revised and improved. Perfect, so another writing focus of this article is the next part, that is, the construction and improvement of the community correction system in China.
The fourth part: In order to perfect the community correction system in our country, aiming at the shortcomings of the third part, the author puts forward some suggestions and assumptions which are not mature enough, in order to do his little contribution to the construction of the community correction system in our country.
From the third part of the community correction practice in China, the problems related to the discussion, whether in the conceptual level of understanding or in the improvement of legislation, China's current community correction system has many defects and deficiencies. Transformation -- updating the concept of punishment; 2, improving the legislative level -- Reconstructing the legal system of community correction.
From the point of view of the problems existing in the practice of community correction in China, the key to the problems lies in the inability to rely on, whether it is the content of implementation, the subject of implementation or the procedure of implementation. The two thinking dimensions of criminal procedure law expounds the improvement and perfection of community correction.
From the dimension of criminal substantive law (criminal law) and in view of the existing problems in substantive law, this paper attempts to focus on the different objects of community correction as the research perspective, aiming at the deficiencies of the current community correction related legislation in China, according to the five different objects of community correction stipulated in the "Notice" of the highest document on community correction pilot work. First, make amendments and improvements.
In view of the shortcomings of the Criminal Procedure Law (CPL), the author makes a preliminary assumption on the unification of penalty execution institutions and the integration of execution resources in order to complement the perfection of the criminal substantive law (criminal law).
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926.8
本文编号：2195479
[Abstract]:Throughout the history of the development of criminal law, it is not difficult to find that the overall trend of the development of penalty is from harshness to relaxation.
Community correction represents the trend and trend of the development of execution in the world. Therefore, in July 2003, China has carried out the pilot work of community correction in some areas. As a new execution system different from the traditional severe punishment doctrine, community correction system has just started in China, whether in criminal law theory or in judicial practice. As an exploratory study, guided by multi-disciplinary knowledge of law and sociology, this paper introduces the ideological evolution, theoretical value and social foundation of community correction in China. At last, the author puts forward the idea of constructing a new community correction model which is suitable for China's national conditions. Specifically, apart from the introduction and conclusion, the author tries to write this article from the following four aspects:
The first part is an introduction. This part begins with the "Notice on the Pilot Work of Community Correction" issued jointly by the two courts on July 10, 2003, and raises some questions. Then it discusses the theoretical basis of community correction in detail by using the methods of historical research and comparative study.
In this part, the author makes a detailed theoretical analysis of the theoretical basis of community correction from seven different perspectives. In the process of explaining and analyzing the theoretical basis from different perspectives, it is not difficult to draw the conclusion that the rise of community correction system is the inevitable result of the development of penalty, and it is the people's re-examination of penalty and the economization of execution. After the contradiction and conflict of principles, a brand-new concept of penalty emerges. Its existence is based on the cross-support of the above-mentioned different theories. Its theoretical background is the rise of the theory of educational penalty, which is based on the premise of personality correction, aiming at the return of criminals to society, and embodies the humanistic value of execution and the modesty of penalty. It can be said that restraining thought, reflecting the economic principle of execution and the theory of criminal compensation, is the deep development of the theory of return and the inevitable end-result of the theory of socialization of punishment.
The second part discusses the practical necessity and academic possibility of community correction in China.
The great value of community correction is undoubted. However, an important question is whether it is necessary to implement this pattern in China, which originates from western developed countries. In this regard, the author thinks that community correction weakens the "label effect" of criminals and embodies the spirit of humanism. It respects the personality dignity of the corrected object, carries out civilized management and gives corresponding humanistic care so that it can perfect the missing social personality as soon as possible and return to society better. By making full use of the social forces of the community, non-governmental organizations, volunteers and so on, the community has played a good role as a grass-roots group. The flexible social integration function of the organization also constructs a favorable environment for the re-socialization of criminals; by solving the problems encountered by the community correction personnel in life and employment, the opposition between the community and the society can be weakened, and the long-term mechanism for preventing and reducing crime can be constructed to maintain social security and stability. In China, it is necessary to localize it.
Community correction, as a socialized and open mode of execution, is not only the product of social and economic development to a certain extent, but also the implementation of it must be supported by certain economic and social conditions. China has preliminarily got the following social realities to carry out community correction:
Social Foundation - In the current Chinese society, along with the gradual separation of civil society and political state, the dual social structure model has been initially formed, and a relatively independent civil society is growing up, which provides the necessary social foundation for the development of community correction.
The foundation of society and public opinion, the enhancement of criminal's right consciousness and the improvement of criminal's right protection, will certainly serve as a solid social and public opinion foundation for the development of community correction theory.
Theoretical Foundation-With the smooth completion of the evolution of China's society from a unitary structure to a dualistic structure, the enhancement of criminals'awareness of rights and the continuous improvement of the protection of criminals' rights, more and more Chinese scholars of criminal law begin to turn their research perspectives to criminals, and begin to pay attention to the causes of the formation of criminals and the integrity of criminals. The transformation of the perspective of criminal law from crime to criminal will certainly lay a solid theoretical foundation for the vigorous development of community correction in China.
The third part: Through consulting the data and using the method of comparative study, the author dialectically expounds the deficiencies in the pilot work of community correction in China.
In the short-term pilot, community correction as a new thing, its strong vitality has begun to appear. It has achieved good results in solving the jail congestion problem, saving execution resources, reforming criminals, and enhancing the efficiency of punishment. However, the community correction work in China is still in the preliminary exploration stage, so in the pilot. In the work, whether in the legislative level or in practice, whether in the substantive or procedural, from the confirmation of the legal status of the executive subject of community correction to the determination of community prisoners, from the arrangement of specific corrective measures to the procedural guarantee of community correction, there are many problems, which need to be constantly revised and improved. Perfect, so another writing focus of this article is the next part, that is, the construction and improvement of the community correction system in China.
The fourth part: In order to perfect the community correction system in our country, aiming at the shortcomings of the third part, the author puts forward some suggestions and assumptions which are not mature enough, in order to do his little contribution to the construction of the community correction system in our country.
From the third part of the community correction practice in China, the problems related to the discussion, whether in the conceptual level of understanding or in the improvement of legislation, China's current community correction system has many defects and deficiencies. Transformation -- updating the concept of punishment; 2, improving the legislative level -- Reconstructing the legal system of community correction.
From the point of view of the problems existing in the practice of community correction in China, the key to the problems lies in the inability to rely on, whether it is the content of implementation, the subject of implementation or the procedure of implementation. The two thinking dimensions of criminal procedure law expounds the improvement and perfection of community correction.
From the dimension of criminal substantive law (criminal law) and in view of the existing problems in substantive law, this paper attempts to focus on the different objects of community correction as the research perspective, aiming at the deficiencies of the current community correction related legislation in China, according to the five different objects of community correction stipulated in the "Notice" of the highest document on community correction pilot work. First, make amendments and improvements.
In view of the shortcomings of the Criminal Procedure Law (CPL), the author makes a preliminary assumption on the unification of penalty execution institutions and the integration of execution resources in order to complement the perfection of the criminal substantive law (criminal law).
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926.8
【引证文献】
相关硕士学位论文 前1条
1 程娟;未成年犯的再社会化[D];曲阜师范大学;2012年
，本文编号：2195479
本文链接：https://www.wllwen.com/falvlunwen/fanzuizhian/2195479.html
