德国《少年法院法》分流机制研究和借鉴
发布时间：2018-11-01 11:33
【摘要】： 长期以来,我国青少年刑事案件分流机制改革备受关注。同作为成文法国家的德国,其青少年司法分流机制值得研究。德国的青少年刑事案件分流机制主要规定在《少年法院法》中。文章将聚焦这部法律,阐述德国青少年司法分流机制的一些特征性制度,旨在为解决我国青少年犯罪分流程序中出现的问题提供参考。 本文遵循提出问题——寻找答案——验证可能性——解决问题的思路,期待在德国青少年司法分流机制中汲取在我国司法实践中可以借鉴的相关制度。在研究方法上,本文采用宏观定位和微观对比的方法,谨慎探寻德国的经验是否能适用于国内的实践。本文第一章指出我国青少年司法实践存在的问题,其主要包括四个方面:教育和惩罚之间的关系;青少年犯罪的划分和处理;犯罪矫正程序和实施的多样性以及我国分流程序改革中出现的争议。开篇即提出问题,一方面是由于本文的最终目的在于解决我国青少年司法立法和实践中的问题,另一方面以这些问题为引导,以借鉴的视角研究德国法的相关制度。 第二章阐述了德国青少年司法的分流制度,本章从广义和狭义的层面,以《少年法院法》为中心阐述德国青少年刑事案件的分流系统。狭义主要指程序法方面的内容,包括检察官和法官主导的分流,广义还包括分流替代措施,出于实用性的考虑,本文还加入了缓科制度。此外,在本章中还补充介绍了一些个别性的问题,如在德国法中对于年轻成年人的特殊规定和当未成年人和成年人实施共同犯罪时的处理程序。 第三章结合其他部门法,从整体的角度分析德国《少年法院法》,包括德国青少年犯罪情况、分流措施实施状况及效果。与德国《少年法院法》相关的法律,以期为德国少年法院法定位从而更全面了解德国青少年司法分流制度。 第四章是第一章提出问题的解决方法,即讨论中国借鉴德国青少年司法分流机制的可能性和可能的做法。本章分为两部分,第一部分分析我国青少年司法的现状,包括我国青少年犯罪的特点和原因,我国青少年犯罪案件分流的立法和实施情况,我国分流替代措施和辅助机构以及我国传统法观念的简述,意在通过中德两国基本情况的比较,分析我国借鉴德国制度的可能性。本章的第二部分作为第一章提出的问题的解决和呼应,结合中德的制度和现状,简要提出我国现阶段进行改革的方向和可能做法。 最后得出结论。
[Abstract]:For a long time, the reform of diversion mechanism of juvenile criminal cases in China has attracted much attention. As a statutory country, Germany's juvenile judicial diversion mechanism is worth studying. The diversion mechanism of juvenile criminal cases in Germany is mainly stipulated in the Juvenile Court Law. This article will focus on this law, expounding some characteristic system of juvenile judicial diversion mechanism in Germany, in order to provide reference for solving the problems in juvenile delinquency diversion procedure in our country. This paper follows the idea of asking questions-finding answers-verifying possibilities-to solve the problems, and looks forward to learning from the German juvenile judicial diversion mechanism the relevant systems that can be used for reference in our judicial practice. In terms of research methods, this paper adopts the methods of macro orientation and micro-contrast to explore carefully whether the German experience can be applied to domestic practice. The first chapter of this paper points out the problems existing in the practice of juvenile justice in China, which mainly includes four aspects: the relationship between education and punishment, the division and treatment of juvenile delinquency, and the relationship between juvenile delinquency and juvenile delinquency. The diversity of the procedure and implementation of crime correction and the controversy in the reform of diversion procedure in China. On the one hand, the final purpose of this paper is to solve the problems in the legislation and practice of juvenile justice in China, on the other hand, to study the relevant system of German law from the perspective of reference. The second chapter expounds the system of juvenile justice diversion in Germany. This chapter expounds the diversion system of juvenile criminal cases in Germany from the broad and narrow level, taking the Juvenile Court Law as the center. Narrow sense mainly refers to the content of procedural law, including the diversion led by prosecutors and judges, and the alternative measures of diversion in a broad sense. In addition, a number of individual issues are introduced in this chapter, such as the special provisions of German law for young adults and the procedure for dealing with minors and adults in the event of joint offences. The third chapter analyzes the juvenile court law of Germany from the whole angle, including juvenile delinquency in Germany, the implementation of diversion measures and its effect. The law related to the Juvenile Court Law of Germany, in order to position the juvenile court law in Germany and understand the juvenile judicial diversion system in Germany. The fourth chapter is the solution to the problem in the first chapter, that is, to discuss the possibility and possible ways for China to draw lessons from the juvenile judicial diversion mechanism in Germany. This chapter is divided into two parts. The first part analyzes the current situation of juvenile justice in China, including the characteristics and reasons of juvenile delinquency, the legislation and implementation of diversion of juvenile delinquency cases in China. The brief introduction of our country's alternative measures of diversion and auxiliary institutions as well as the concept of Chinese traditional law is intended to analyze the possibility of our country drawing lessons from the German system through the comparison of the basic conditions between China and Germany. The second part of this chapter is the solution and echo of the problems raised in the first chapter, combining with the system and present situation of China and Germany, the paper briefly puts forward the direction and possible ways of carrying out the reform in our country at the present stage. Finally, a conclusion is drawn.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D956.1;DD916.2
本文编号：2303797
[Abstract]:For a long time, the reform of diversion mechanism of juvenile criminal cases in China has attracted much attention. As a statutory country, Germany's juvenile judicial diversion mechanism is worth studying. The diversion mechanism of juvenile criminal cases in Germany is mainly stipulated in the Juvenile Court Law. This article will focus on this law, expounding some characteristic system of juvenile judicial diversion mechanism in Germany, in order to provide reference for solving the problems in juvenile delinquency diversion procedure in our country. This paper follows the idea of asking questions-finding answers-verifying possibilities-to solve the problems, and looks forward to learning from the German juvenile judicial diversion mechanism the relevant systems that can be used for reference in our judicial practice. In terms of research methods, this paper adopts the methods of macro orientation and micro-contrast to explore carefully whether the German experience can be applied to domestic practice. The first chapter of this paper points out the problems existing in the practice of juvenile justice in China, which mainly includes four aspects: the relationship between education and punishment, the division and treatment of juvenile delinquency, and the relationship between juvenile delinquency and juvenile delinquency. The diversity of the procedure and implementation of crime correction and the controversy in the reform of diversion procedure in China. On the one hand, the final purpose of this paper is to solve the problems in the legislation and practice of juvenile justice in China, on the other hand, to study the relevant system of German law from the perspective of reference. The second chapter expounds the system of juvenile justice diversion in Germany. This chapter expounds the diversion system of juvenile criminal cases in Germany from the broad and narrow level, taking the Juvenile Court Law as the center. Narrow sense mainly refers to the content of procedural law, including the diversion led by prosecutors and judges, and the alternative measures of diversion in a broad sense. In addition, a number of individual issues are introduced in this chapter, such as the special provisions of German law for young adults and the procedure for dealing with minors and adults in the event of joint offences. The third chapter analyzes the juvenile court law of Germany from the whole angle, including juvenile delinquency in Germany, the implementation of diversion measures and its effect. The law related to the Juvenile Court Law of Germany, in order to position the juvenile court law in Germany and understand the juvenile judicial diversion system in Germany. The fourth chapter is the solution to the problem in the first chapter, that is, to discuss the possibility and possible ways for China to draw lessons from the juvenile judicial diversion mechanism in Germany. This chapter is divided into two parts. The first part analyzes the current situation of juvenile justice in China, including the characteristics and reasons of juvenile delinquency, the legislation and implementation of diversion of juvenile delinquency cases in China. The brief introduction of our country's alternative measures of diversion and auxiliary institutions as well as the concept of Chinese traditional law is intended to analyze the possibility of our country drawing lessons from the German system through the comparison of the basic conditions between China and Germany. The second part of this chapter is the solution and echo of the problems raised in the first chapter, combining with the system and present situation of China and Germany, the paper briefly puts forward the direction and possible ways of carrying out the reform in our country at the present stage. Finally, a conclusion is drawn.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D956.1;DD916.2
【引证文献】
相关硕士学位论文 前1条
1 张晗瑜;个案社会工作介入犯罪青少年帮教案例研究[D];吉林农业大学;2013年
，本文编号：2303797
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