免除刑罚制度的比较考察
发布时间：2018-11-12 14:11
【摘要】：通过比较考察发现,在我国、日本和德国,虽然刑法关于免除刑罚的规定存在差异,但在实务中免除刑罚的适用均属例外情况。适用免除刑罚既可以缓和制裁,又可以通过建构"刑事程序—(非刑罚性的刑事或)行政制裁"模式来发挥强化制裁的作用,并且具备审前分流措施及形式裁判所不具备的优势。为了充分发挥免除刑罚制度在制裁多元化中的作用,就必须承认刑法第37条具有作为独立的刑罚免除事由的一面;并且通过法解释学工作,可以将强化制裁的功能纳入该条的适用范围。同时,第37条还具有作为具体的刑罚免除事由的概括性规定的一面。在这两种情况下,都可以依据第37条对相应犯罪科处非刑罚性的刑事制裁措施。
[Abstract]:Through comparative investigation, it is found that in China, Japan and Germany, although there are differences in the provisions of the criminal law on the exemption of punishment, the application of exemption is an exception in practice. The application of exemption from punishment can not only alleviate the sanctions, but also strengthen the sanctions by constructing the model of "criminal procedure-(non-penal criminal or) administrative sanctions". And has the pretrial diversion measure and the form judgment does not have the superiority. In order to give full play to the role of the system of exemption from punishment in the diversification of sanctions, it is necessary to recognize that Article 37 of the Criminal Law has its own side as an independent reason for the exemption of punishment. Through the work of legal hermeneutics, the function of strengthening sanctions can be brought into the scope of application of this article. At the same time, Article 37 also has a general stipulation as a specific reason for the exoneration of penalty. In both cases, non-penal measures may be imposed on the corresponding crime section pursuant to article 37.
【作者单位】： 中国政法大学;
【分类号】：D925.2
，
本文编号：2327341
[Abstract]:Through comparative investigation, it is found that in China, Japan and Germany, although there are differences in the provisions of the criminal law on the exemption of punishment, the application of exemption is an exception in practice. The application of exemption from punishment can not only alleviate the sanctions, but also strengthen the sanctions by constructing the model of "criminal procedure-(non-penal criminal or) administrative sanctions". And has the pretrial diversion measure and the form judgment does not have the superiority. In order to give full play to the role of the system of exemption from punishment in the diversification of sanctions, it is necessary to recognize that Article 37 of the Criminal Law has its own side as an independent reason for the exemption of punishment. Through the work of legal hermeneutics, the function of strengthening sanctions can be brought into the scope of application of this article. At the same time, Article 37 also has a general stipulation as a specific reason for the exoneration of penalty. In both cases, non-penal measures may be imposed on the corresponding crime section pursuant to article 37.
【作者单位】： 中国政法大学;
【分类号】：D925.2
，
本文编号：2327341
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