宪法人权视野下的民生刑法观研究

发布时间：2018-11-12 15:40

【摘要】：本文从宪法人权视野出发,系统研究民生刑法观及相关问题。刑法观是对刑法重大理论问题的基本立场、基本观点、基本看法。刑法作为部门法,必须以宪法为依据,宪法理念发展必然会影响刑法观。在改革开放进入深水区及加强民生建设的社会大背景下,尊重和保障人权入宪,使得宪法更加重视和完善人权保障,这必然对刑法发展进步产生影响。不仅在刑法理论研究方面,且在刑事立法、司法、执法等方面都会有影响。当前,民生建设得到高度重视。受宪法人权观念理论和实践影响,我国刑法学理论和实践已有一种新的理念出现,并初步形成了一套理论体系,可称之民生刑法观。以人权为中心、保障人权为根本职能的民生刑法观无论是价值、依据、基本要求,都有与传统的以维稳为中心、打击犯罪为根本职能的刑法观有着本质的不同,有必要作一完整的归纳、提炼和总结。近年来,研究刑法观发展和演变的文章不少,但从宪法角度系统研究刑法观的文章并不多。由于民生刑法观的产生离不开宪法人权观念的影响,因此从宪法学的人权角度来研究民生刑法观理论更有深度、更有意义。本文从宪法的永恒追求人权出发,研究民生刑法观的产生、内容、特点、价值、基本原则、基本要求、实践体现等问题。全文共分五部分。第一部分阐述宪法终极价值观与民生刑法观的关系,包括保障人权是宪法的永恒价值追求,民生权是人权的重要内容,民生权发展必然要求刑法的保护等。第二部分阐述民生刑法观的基本问题,包括民生刑法观的理论依据、价值、基本原则、功能等。第三部分阐述民生刑法观的基本要求,即适度犯罪化、刑罚轻缓化、宽严时策化、司法人性化。第四部分阐述民生刑法观在实践中的具体实现,包括在刑事立法方面、刑事司法方面、刑罚执行方面的实现。第五部分阐述与民生刑法观相关的几个问题,包括刑法原则的宪法化、刑事司法解释的完善、死刑限制等问题。
[Abstract]:From the perspective of constitutional human rights, this paper systematically studies the concept of people's livelihood criminal law and related issues. The view of criminal law is the basic position, basic viewpoint and basic view on the major theoretical problems of criminal law. As a branch law, the criminal law must be based on the constitution, and the development of the constitutional concept will inevitably influence the concept of criminal law. Under the background of reform and opening to the outside world and strengthening the construction of people's livelihood, respecting and protecting human rights into the constitution makes the constitution pay more attention to and perfect the protection of human rights, which will inevitably have an impact on the development and progress of criminal law. Not only in the theory of criminal law research, but also in criminal legislation, justice, law enforcement and other aspects will have an impact. At present, people's livelihood construction is highly valued. Influenced by the theory and practice of constitutional human rights, there has been a new concept of criminal law theory and practice in our country, and a set of theory system has been formed, which can be called the concept of people's livelihood criminal law. The concept of people's livelihood criminal law, which takes human rights as the center and guarantees human rights as the fundamental function, is different from the traditional view of criminal law, which regards maintaining stability as the center and fighting crime as the fundamental function, regardless of its value, basis and basic requirements. It is necessary to make a complete induction, extraction and summary. In recent years, there are many articles on the development and evolution of the concept of criminal law, but there are few articles on the systematic study of the concept of criminal law from the angle of constitution. Because the concept of people's livelihood criminal law can not be separated from the influence of the concept of constitutional human rights, it is more profound and meaningful to study the theory of people's livelihood criminal law from the angle of human rights of constitutional jurisprudence. Starting from the eternal pursuit of human rights in the Constitution, this paper studies the emergence, content, characteristics, value, basic principles, basic requirements and practical embodiment of the concept of criminal law of the people's livelihood. The full text is divided into five parts. The first part expounds the relationship between the ultimate values of the Constitution and the concept of criminal law of the people's livelihood, including the protection of human rights is the eternal value pursuit of the Constitution, the right to people's livelihood is an important content of human rights, and the development of the right to the people's livelihood inevitably requires the protection of criminal law. The second part describes the basic issues of the concept of people's livelihood criminal law, including the theoretical basis, value, basic principles, functions and so on. The third part expounds the basic requirements of the concept of people's livelihood criminal law, that is, moderate crime, light punishment, lenient and strict strategy, judicial humanization. The fourth part elaborates the concrete realization of the concept of people's livelihood criminal law in practice, including the realization of criminal legislation, criminal justice and penalty enforcement. The fifth part expounds several problems related to the concept of people's livelihood criminal law, including the constitutionalization of criminal law principles, the perfection of criminal judicial interpretation, the restriction of death penalty and so on.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D911;D914

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