欧洲刑罚制度演变的启示
发布时间：2019-06-03 23:50
【摘要】：我们现在正在经历社会转型,在社会矛盾比较突出的今天,如何利用好刑罚,发挥刑罚的积极效用,尽可能避免其消极影响,就显得尤为重要。无论在国民政府时期,还是在新中国,大陆法系刑事法制度对我国法制近代化的影响都十分深刻。法治发达国家,也经历了不同的历史时期,也存在类似我们今天的问题。上个世纪初的欧洲经历了犯罪高发的时期,因而也催生了其各自的刑罚改革和刑事政策的大幅度调整。对于今天这样的一种局面,因时因势进行刑罚改革,即是对社会现实的一种积极回应。 笔者认为,在对我国既有刑罚制度进行诊脉自疗的同时,还要积极吸取法治发达国家的有益经验,尤其是其刑罚改革的方法论,从而使我们国刑事法律制度得以完善。本文从欧陆国家刑罚制度和改革进程出发,寻找典型,挖掘刑罚改革的方法和原因,从而总结出刑罚改革的普遍特点和做法。在理性分析我国刑罚制度的基础上,给出笔者的改革建议。 本文主要介绍了欧陆有关国家的基本刑罚制度和近代刑罚改革。选择6个欧陆国家(希腊、葡萄牙、西班牙、瑞士、丹麦、瑞典)的刑罚制度来研究,这几个国家一定意义上代表欧洲大陆各国(特别是欧盟成员)的刑罚制度的改革发展轨迹,尤其我国尚无系统阐述这些国家的刑罚改革的著述,而他们的诸多刑罚制度和改革经验值得我国借鉴。 引言 阐述研究欧陆刑罚发展对我刑罚改革的意义。 第一章：我国刑罚现状分析从横向和纵向两个角度审视我国现行刑罚制度。从纵向看存在法定刑罚幅度过宽的问题,从横向看,罪种间法定刑幅度不够协调。总结出我们国现行刑罚不足之处：整体上重刑结构,轻缓化程度过低；刑罚种类较少,条文简单,可操作性不强；财产刑和自由刑的配置问题；附加刑弱化；刑罚社会化程度过低。 第二章：欧陆国家刑罚历史综述 对欧陆国家的刑罚改革历史进行总体概括,整个20世纪,欧陆国家的刑罚改革紧紧围绕短期自由刑的兴衰而展开,随着社会具体情况的变化,短期自由刑发挥着不同的作用。在过去20多年的时问中,欧洲国家所采取的减少短期监禁刑的措施是成果卓著的,其具体可替代短期监禁刑的措就有20多种。其中社会服务刑具有普遍的实际意义。 第三章：欧陆国家刑罚变革及现行刑罚制度介绍 本章中,笔者对一些典型欧洲大陆国家的刑罚变革及现行刑罚制度介绍。主要有希腊、葡萄牙、西班牙、瑞士、丹麦、瑞典。通过各国具体改革过程,总结出一些当今国家刑法改革中的普遍措施,在后文中进行分析。 第四章：欧陆国家刑罚改革特点总结,提炼发展趋势 当代世界各国刑罚的发展总体上来说向缓和的方向发展,但具体而言,则向两极化方向展开,即对轻罪和中等程度犯罪的处罚越来越轻,甚至予以除罪化、非刑罚化；而对于重罪,特别是对侵害公民生命、身体健康、财产安全和对社会共同秩序威胁较大的犯罪,则采取加重处罚,继续施用重刑的政策。从具体的刑罚结构上看,死刑的废除是不可阻挡的历史潮流,自由刑虽然还占据重要的地位,但自由刑一统天下的局面将复存在,罚金刑的地位不断上升,非刑罚化的措施得到了广泛的重视。 第五章：我国刑罚改革建议 本章中笔者提出一些我国刑罚改革的可行性建议。变重刑结构为轻刑结构,实现刑罚轻缓化；将罚金刑设定为主刑；重新配置刑罚体系等。 结束语
[Abstract]:We are now going through the social transformation, and in the social contradiction, how to use the good penalty, to play the positive effect of the penalty, to avoid the negative influence as much as possible, it is especially important. Whether in the period of the national government or in the new china, the criminal law system of the continental law system has a profound influence on the modernization of the legal system in our country. The rule of law developed countries, also experienced different historical periods, also have problems similar to those of our today. In the beginning of the last century, Europe experienced a period of high crime, and it also gave birth to the great adjustment of their respective penal reform and criminal policy. For a situation such as today, the reform of the penalty due to the potential is a positive response to the social reality. In the author's opinion, in the meantime, we should also actively draw the beneficial experience of the developed countries of the rule of law, especially the methodology of the reform of the penalty, so that the criminal law system of our country can be finished. On the basis of the penalty system and the reform process of the European countries, this paper tries to find out the methods and causes of the typical and mining penalty reform, so as to sum up the general characteristics and the doing of the penalty reform. On the basis of the penalty system in China, the author gives the author's reform and construction In this paper, the basic penalty system and the modern punishment of the countries in Europe and the land are introduced in this paper. Penalty reform. Select the penal system of six European countries (Greece, Portugal, Spain, Switzerland, Denmark, Sweden) to study the reform of the penal system on behalf of the countries of the European continent, especially the European Union. There is no systematic exposition of the criminal penalty reform in these countries, and many of their penal systems and reform experience are worthy of me. to borrow from one's The introduction set forth the study of the development of the continental penalty to me. The meaning of penalty reform. Chapter one: The analysis of the present situation of the penalty in China from both the horizontal and the vertical. In view of the current penalty system in our country, there are the problems of the width of the legal penalty in the longitudinal direction, from the view of the horizontal, the crime of the crime The legal penalty is not well coordinated. The present penalty deficiency of our country is summarized: the structure of the heavy punishment on the whole is too low, the degree of light is too low, the type of the penalty is small, the provision is simple, the operability is not strong, the disposition of the property and the free punishment is not good, and the additional punishment is weakened; The degree of socialization of the penalty is too low. In the whole of the 20th century, the penalty reform of the European and European countries is closely related to the rise and fall of the short-term free penalty. On the other hand, with the change of the specific situation of the society, The short-term free penalty plays a different role. In the past 20 years, the measures taken by the European countries to reduce short-term imprisonment are well-known and can be replaced in particular There are more than 20 cases of short-term imprisonment, of which It is of general practical significance to serve the penalty. Chapter 3: Europe In this chapter, the author of this chapter introduces the reform of the penalty of the land and the current penal system, and the author is of great importance to some of the typical European countries The reform of the penalty and the introduction of the current penal system in the land of the land. Portugal, Spain, Switzerland, Denmark, Sweden. The general measures in the reform are analysed in the following text. Chapter IV The characteristics of the country's penalty reform in the European and European countries are summarized, and the development trend of the national penalty in the contemporary world is in the general sense to the moderate direction, but in particular, the two polarization directions The development, that is, the punishment of minor and medium-level crimes is more and more light, even the crime of decriminalization and non-punishment; and for serious crimes, especially against the life of the citizen, the health, the property security and the threat to the common order of the society In the specific criminal structure, the abolition of the death penalty is an unstoppable historical tide, and the free punishment is still an important position, but the situation of the free execution of the whole world will be complex and fine. An ever-rising, non-punitive measure. Chapter five: the reform of the penalty in China It is suggested that the author put forward some feasible suggestions for the reform of penalty in our country. light of punishment
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D95;DD914
本文编号：2492317
[Abstract]:We are now going through the social transformation, and in the social contradiction, how to use the good penalty, to play the positive effect of the penalty, to avoid the negative influence as much as possible, it is especially important. Whether in the period of the national government or in the new china, the criminal law system of the continental law system has a profound influence on the modernization of the legal system in our country. The rule of law developed countries, also experienced different historical periods, also have problems similar to those of our today. In the beginning of the last century, Europe experienced a period of high crime, and it also gave birth to the great adjustment of their respective penal reform and criminal policy. For a situation such as today, the reform of the penalty due to the potential is a positive response to the social reality. In the author's opinion, in the meantime, we should also actively draw the beneficial experience of the developed countries of the rule of law, especially the methodology of the reform of the penalty, so that the criminal law system of our country can be finished. On the basis of the penalty system and the reform process of the European countries, this paper tries to find out the methods and causes of the typical and mining penalty reform, so as to sum up the general characteristics and the doing of the penalty reform. On the basis of the penalty system in China, the author gives the author's reform and construction In this paper, the basic penalty system and the modern punishment of the countries in Europe and the land are introduced in this paper. Penalty reform. Select the penal system of six European countries (Greece, Portugal, Spain, Switzerland, Denmark, Sweden) to study the reform of the penal system on behalf of the countries of the European continent, especially the European Union. There is no systematic exposition of the criminal penalty reform in these countries, and many of their penal systems and reform experience are worthy of me. to borrow from one's The introduction set forth the study of the development of the continental penalty to me. The meaning of penalty reform. Chapter one: The analysis of the present situation of the penalty in China from both the horizontal and the vertical. In view of the current penalty system in our country, there are the problems of the width of the legal penalty in the longitudinal direction, from the view of the horizontal, the crime of the crime The legal penalty is not well coordinated. The present penalty deficiency of our country is summarized: the structure of the heavy punishment on the whole is too low, the degree of light is too low, the type of the penalty is small, the provision is simple, the operability is not strong, the disposition of the property and the free punishment is not good, and the additional punishment is weakened; The degree of socialization of the penalty is too low. In the whole of the 20th century, the penalty reform of the European and European countries is closely related to the rise and fall of the short-term free penalty. On the other hand, with the change of the specific situation of the society, The short-term free penalty plays a different role. In the past 20 years, the measures taken by the European countries to reduce short-term imprisonment are well-known and can be replaced in particular There are more than 20 cases of short-term imprisonment, of which It is of general practical significance to serve the penalty. Chapter 3: Europe In this chapter, the author of this chapter introduces the reform of the penalty of the land and the current penal system, and the author is of great importance to some of the typical European countries The reform of the penalty and the introduction of the current penal system in the land of the land. Portugal, Spain, Switzerland, Denmark, Sweden. The general measures in the reform are analysed in the following text. Chapter IV The characteristics of the country's penalty reform in the European and European countries are summarized, and the development trend of the national penalty in the contemporary world is in the general sense to the moderate direction, but in particular, the two polarization directions The development, that is, the punishment of minor and medium-level crimes is more and more light, even the crime of decriminalization and non-punishment; and for serious crimes, especially against the life of the citizen, the health, the property security and the threat to the common order of the society In the specific criminal structure, the abolition of the death penalty is an unstoppable historical tide, and the free punishment is still an important position, but the situation of the free execution of the whole world will be complex and fine. An ever-rising, non-punitive measure. Chapter five: the reform of the penalty in China It is suggested that the author put forward some feasible suggestions for the reform of penalty in our country. light of punishment
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D95;DD914
【参考文献】
相关期刊论文 前10条
1 周光权;法定刑配置的合理性探讨——刑罚攀比及其抗制[J];法律科学(西北政法学院学报);1998年04期
2 陈兴良;;刑罚改革论纲[J];法学家;2006年01期
3 张智辉;;刑罚改革的切入点[J];法学家;2006年01期
4 宋庆德;论短期自由刑的存废[J];中央政法管理干部学院学报;2001年04期
5 杨彩霞;没收财产刑的困境与出路[J];华东政法学院学报;2001年04期
6 游伟;重刑化的弊端与我国刑罚模式的选择[J];华东政法学院学报;2003年02期
7 王世洲;现代刑罚目的理论与中国的选择[J];法学研究;2003年03期
8 王利荣;刑罚理性与规则意义[J];人文杂志;2002年02期
9 大卫·哥丁戴尔;茂盛;;美国惩处罪犯的新方法—劳动赔偿[J];国外法学;1982年01期
10 琼·格拉杰斯克;西格弗莱德·兰迈克;何玉;;波兰新刑法典的改革[J];国外法学;1984年01期
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