未成年人前科消灭制度二元化构建研究
发布时间：2018-08-08 16:48
【摘要】：未成年人犯罪已经成为社会关注的一个重要问题之一,我们在关注如何惩罚的同时,也将目光放在了保护未成年犯罪人合法权益上。未成年人前科消灭制度被认为是保护未成年犯罪人合法权益的一项重要制度,我国的未成年人前科消灭制度在理论上有较为热烈的讨论,在司法实践上,2012年新《刑事诉讼法》规定了未成年人犯罪记录封存制度,这也是我国在少年司法制度上的一个重要进步,但这与保护未成年人合法权益和帮助他们顺利再社会化相去甚远。笔者通过研究、总结国内外相关的资料与法律,对未成年人前科制度提出了自己的一些见解。本文第一部分首先对从前科的概念与性质上着手,通过对前科后遗效应的分析,对未成年人前科概念进行界定,将违法记录纳入前科概念内,提出“大前科”概念;第二部分对未成年人前科的“消灭”与“封存”两种制度进行论述,通过对未成年人前科消灭制度简要的理论归纳,对其合理性和弊端进行论证,得出完全消灭前科存在着一定弊端的结论,而后对犯罪记录封存制度的利弊进行探讨。在第三部分,笔者通过对未成年人消灭制度与封存制度的辩证论证,提出未成年人前科消灭制度二元化构建理论,即以未成年人前科消灭为原则、特定罪名封存为例外,并行未成年人前科消灭和封存制度思路;而后针对具体制度构建,笔者从未成年人前科消灭制度和封存制度两个方面,分别对适用条件、适用程序、适用后果等方面提出了构建思路,以期对未成年人前科消灭理论的丰富与司法实践的进步起到一定的帮助作用。
[Abstract]:Juvenile delinquency has become one of the most important problems in society. While we pay attention to how to punish, we also focus on protecting the legitimate rights and interests of juvenile offenders. The system of eliminating juvenile criminal record is considered to be an important system to protect the legitimate rights and interests of minor offenders. In our country, there is a heated discussion on the system of eliminating juvenile criminal record in theory. In judicial practice, the new Criminal procedure Law of 2012 stipulates the system of sealing and storing juvenile delinquency records, which is also an important progress in the juvenile justice system in our country. But this is far from protecting the legal rights of minors and helping them socialize smoothly. Based on the research, the author summarizes the relevant materials and laws at home and abroad, and puts forward some opinions on the system of juvenile criminal record. The first part of this paper begins with the concept and nature of criminal record, through the analysis of the posthumous effect of criminal record, defines the concept of juvenile criminal record, brings the illegal record into the concept of criminal record, and puts forward the concept of "grand criminal record". The second part discusses the two systems of "elimination" and "seal" of juvenile criminal record, and proves its rationality and malpractice through the brief theoretical induction of the elimination system of juvenile criminal record. It is concluded that the elimination of criminal record has some drawbacks, and then the advantages and disadvantages of the system of sealing and keeping criminal records are discussed. In the third part, through the dialectical argumentation of the system of the elimination of minors and the system of sealing up, the author puts forward the dualistic construction theory of the system of elimination of minors' criminal record, that is, the principle of eliminating the criminal record of minors, with the exception of the closure of specific charges. In view of the concrete system construction, the author analyzes the applicable conditions and procedures from two aspects, namely, the elimination system of minor criminal record and the system of sealing up the criminal record of the minor. In order to enrich the theory of the elimination of juvenile criminal record and the progress of judicial practice, this paper puts forward some ideas on the construction of the applicable consequences.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2172408
[Abstract]:Juvenile delinquency has become one of the most important problems in society. While we pay attention to how to punish, we also focus on protecting the legitimate rights and interests of juvenile offenders. The system of eliminating juvenile criminal record is considered to be an important system to protect the legitimate rights and interests of minor offenders. In our country, there is a heated discussion on the system of eliminating juvenile criminal record in theory. In judicial practice, the new Criminal procedure Law of 2012 stipulates the system of sealing and storing juvenile delinquency records, which is also an important progress in the juvenile justice system in our country. But this is far from protecting the legal rights of minors and helping them socialize smoothly. Based on the research, the author summarizes the relevant materials and laws at home and abroad, and puts forward some opinions on the system of juvenile criminal record. The first part of this paper begins with the concept and nature of criminal record, through the analysis of the posthumous effect of criminal record, defines the concept of juvenile criminal record, brings the illegal record into the concept of criminal record, and puts forward the concept of "grand criminal record". The second part discusses the two systems of "elimination" and "seal" of juvenile criminal record, and proves its rationality and malpractice through the brief theoretical induction of the elimination system of juvenile criminal record. It is concluded that the elimination of criminal record has some drawbacks, and then the advantages and disadvantages of the system of sealing and keeping criminal records are discussed. In the third part, through the dialectical argumentation of the system of the elimination of minors and the system of sealing up, the author puts forward the dualistic construction theory of the system of elimination of minors' criminal record, that is, the principle of eliminating the criminal record of minors, with the exception of the closure of specific charges. In view of the concrete system construction, the author analyzes the applicable conditions and procedures from two aspects, namely, the elimination system of minor criminal record and the system of sealing up the criminal record of the minor. In order to enrich the theory of the elimination of juvenile criminal record and the progress of judicial practice, this paper puts forward some ideas on the construction of the applicable consequences.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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，本文编号：2172408
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