对刑法两次性评价原理的思考

发布时间：2018-01-26 10:48

本文关键词： 二次性评价前置法违法性复合量刑　出处：《华东政法大学》2014年硕士论文　论文类型：学位论文

【摘要】：刑法二次性评价原理是一整套评价体系。定罪上，行为需要先经过刑法之外的前置法进行评价，而后进入刑法视野进行是否入罪的评价；量刑上，采取二次复合量刑方法。该原理重视对前置法的寻找，认识到刑法本身的不足，注重刑法与其他部门法衔接过程中刑法的被动性。一次性评价存的笼统、模糊和不足，与公私法相融合的趋势相悖，，其实质是入罪评价。正因为一次性评价的不足，需要运用刑法二次性评价原理。为了证实刑法二次性原理的必要性，除了一次性评价的不足外，对刑法二次性评价原理的适用范围进行了辨析，刑法二次性评价原理并不单纯适用于法定犯，对于传统自然犯同样适用；不仅适用于现在存在的犯罪类型，对于新型犯罪同样适用。刑法二次性评价原理从法理基础上来说，与中外很多法学理论有继承和移植关系。纵向上，该理论与“出礼入刑”有继承关系，“出礼入刑”对于礼与法的经典论述，对于刑法二次性评价原理的出于他法入于刑法有异曲同工之妙；横向上，对英美法系“限权思想”，大陆法系“可罚的违法性理论”、“刑法的规范主义”等有所移植和借鉴。刑法二次性评价原理强调刑法的被动性，限制刑罚的使用。刑法作为社会规范中最为严格的一种规范，是司法机关代表国家行使刑罚权的体现，对国家权力的限制要求慎用刑罚权，而这与刑法的被动适用相吻合；刑法二次性评价原理认为行为之所以可以认定为犯罪，是因为该行为在刑法之外的前置法中被评价为违法，并且这种违法超过了前置法的评价范围，进入刑法，具有刑法上的二次违法性；刑法的规范主义同样提到了行为被认定为犯罪，是行为触犯了刑事法律之外的“行为法”，与刑法二次性评价原理坚持对前置法的寻找是共通的。刑法二次性评价原理对立法的指导在于以寻找、尊重前置法为起点，否定以刑法倒逼前置法制定的立法、修法模式。对司法的指导在于定罪上坚持行为的二次违法性，以“出罪”的评价心理审慎定罪；量刑上充分考虑人身危险性，做到个性化复合量刑。最后，刑法二次性评价原理对法律制度进行重构。搭建法与道德的关系，搭建刑法与前置法的关系。质疑“先刑后民”的做法是一种伪原理，存在诸多缺陷。并对刑民交叉领域的适法提出建议，民法能够充分评价的，只民不刑；刑民并列关系的，刑民并行；刑民关系为包含关系的，先民后刑。经过对刑事附带民事制度的质疑，最后建议废止刑事附带民事诉讼制度。
[Abstract]:The principle of secondary evaluation of criminal law is a set of evaluation system. In the conviction, the behavior needs to be evaluated first by the pre-law outside the criminal law, then into the perspective of the criminal law to evaluate whether the crime is criminalized or not. In sentencing, the second compound sentencing method is adopted. This principle attaches importance to the search for the front law, recognizes the shortcomings of the criminal law itself, and pays attention to the passivity of the criminal law in the process of linking the criminal law with other branches of law. The existence of one-off evaluation is general, vague and insufficient, which is contrary to the trend of the combination of public and private law, and its essence is the evaluation of incrimination, which is precisely due to the deficiency of one-time evaluation. In order to prove the necessity of the principle of secondary nature of criminal law, besides the deficiency of one-time evaluation, the application scope of the principle of secondary evaluation of criminal law is analyzed. The principle of secondary evaluation of criminal law is not only applicable to statutory crime, but also to traditional natural crime. Not only for the existing types of crime, but also for new types of crime. The theory of secondary evaluation of criminal law has inherited and transplanted relationship with many Chinese and foreign legal theories on the basis of jurisprudence. Vertically, this theory has inheritance relationship with "courteous punishment". The classic argumentation of "out of ceremony into punishment" for ritual and law, for the second evaluation of the principle of criminal law out of other laws into the criminal law has the same work in the same way; Horizontally, it is transplanted and used for reference to the idea of "limitation of power" in common law system, "the theory of punishable illegality" in continental law system, and "normalism of criminal law". The second evaluation principle of criminal law emphasizes the passivity of criminal law. As one of the most strict norms in the social norms, criminal law is the embodiment of the judicial organs to exercise the right of punishment on behalf of the state, and the restriction of the state power requires careful use of the right of punishment. This is consistent with the passive application of criminal law; The principle of secondary evaluation of criminal law thinks that the behavior can be regarded as a crime because the act is evaluated as illegal in the front law outside the criminal law, and this illegal law exceeds the scope of the evaluation of the former law and enters into the criminal law. It has the second illegal character in criminal law; The normalism of criminal law also mentions that the behavior is considered as a crime, and it is the behavior law that violates the criminal law. It is common with the principle of the second evaluation of criminal law to insist on the search for the former law. The guidance of the second evaluation principle of criminal law to the legislation is to seek and respect the former law as the starting point and negate the legislation made by the criminal law. The guidance to the judicature lies in the second illegality of the behavior in the conviction, and the careful conviction with the evaluation of "crime"; In sentencing, personal dangerousness should be fully taken into account, and individualized compound sentencing should be achieved. Finally, the principle of secondary evaluation of criminal law reconstructs the legal system. The relationship between law and morality, and the relationship between criminal law and preposition law. It is a false principle to question the practice of "first sentence before the people". There are many defects. And the appropriate law in the field of criminal law and civil law can be fully evaluated, only the people do not punish; Where the criminal and the civilian are juxtaposed, the criminal and the civilian are parallel; After questioning the criminal incidental civil system, the author proposes to abolish the criminal incidental civil procedure system.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924

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