罚金刑立法配置问题研究

发布时间：2018-02-21 06:11

本文关键词： 罚金刑适用范围适用方式罚金数额缴纳方式　出处：《河北大学》2017年硕士论文　论文类型：学位论文

【摘要】：1979年《刑法》中只有20个条文规定了罚金刑,且主要适用于破坏社会主义经济秩序和妨害社会管理秩序两章中的罪名。1979年《刑法》施行期间,全国人大常委会颁布施行的14个单行刑法共计58个条文61种犯罪规定了罚金刑,使得罚金刑的适用范围大大变宽,方式多样化,且采取了并科制中的“必并科”。1997年《刑法》中分则规定的犯罪共计414个,其中设置了罚金刑的犯罪为164个,集中适用于破坏社会主义经济秩序罪和妨害社会管理秩序罪中,罚金刑大范围地适用于经济型犯罪和以营利、贪财为目的的犯罪。1997年《刑法》施行后,随着刑法的不断修正,罚金刑的适用范围日益扩大。特别是《刑法修正案(九)》对罚金刑更是青睐有加。我国罚金刑的立法配置突出问题表现为:一是罚金刑适用范围过窄。主要适用于财产和经济类犯罪,其他的犯罪适用罚金刑的则较少。二是罚金刑适用方式过于僵化。大部分设置罚金刑的罪名都以必并科为主,扼杀了罚金刑适用方式灵活的优点。三是罚金刑适用原则规定的相对粗略。主要以犯罪情节来决定罚金数额,罚金刑的适用缺乏完善的法律依据,法官拥有较大的自由裁量权。四是罚金数额的规定缺乏可操作性。之所以会出现这些现象,不仅是因为立法者对罚金刑的价值认识不足,罚金刑立法与主刑立法不协调,而且罚金刑的配置机制不科学,同时还因为对罪刑法定原则贯彻不力。与我国相比,国外罚金刑几乎适用于所有的犯罪,而且还有易科罚金制度,罚金刑的适用方式也比较灵活。参照国外立法经验,立足于我国有效治理犯罪的现实,我国不仅应当进一步扩大罚金刑的适用范围,增加对单位主管人员和直接责任人的罚金刑配置,增加对过失犯罪的罚金刑处罚,而且应当确立“以选科制为主,并科制为辅”的罚金刑适用方式,适当扩大单科罚金制,在总则中规定选科罚金制的裁量原则,同时应当废除无限额罚金制,扩大适用限额罚金制,合理适用倍比罚金制;另外,还应当引进日额罚金制,增设罚金刑追诉时效制度和罚金易科自由刑制度。
[Abstract]:In 1979, only 20 articles of the Criminal Law provided for the fine penalty, which was mainly applicable to the offences in the two chapters of disrupting the socialist economic order and obstructing the social management order. During the execution of the Criminal Law on 1979, The 14 separate criminal laws promulgated and enforced by the standing Committee of the National people's Congress provide for the fine penalty in 61 kinds of crimes in 58 articles, which has greatly broadened the scope of application of the fine penalty and diversified the way in which it is applied. In 1997, there were 414 crimes stipulated in the specific provisions of the Criminal Law, of which 164 were set up with a fine, which were mainly applicable to the crimes of undermining the socialist economic order and endangering the social management order. The penalty of fine is widely applied to economic crimes and crimes with the aim of profit-making and money avarice. After the implementation of the Criminal Law in 1997, with the continuous revision of the Criminal Law, The scope of application of the fine penalty is expanding day by day. Especially, the amendment of the Criminal Law (9) is more favorable to the fine penalty. The prominent problems in the legislative arrangement of the fine penalty in our country are as follows: first, the scope of application of the fine penalty is too narrow. Property and economic crimes, For other crimes, the application of fine is less. Second, the mode of application of fine is too rigid. Most of the charges for setting up a fine are mainly required to be merged with science. It stifles the advantage of flexibility in the application of the fine penalty. Third, it is relatively rough according to the applicable principles of the fine penalty. The amount of the fine is mainly determined by the circumstances of the crime, and the application of the fine penalty lacks a perfect legal basis. Judges have greater discretion. Fourth, the provisions on the amount of fine are not operable. The reason why these phenomena occur is not only because the legislator has insufficient understanding of the value of the fine penalty, but also because the legislation of fine penalty is not in harmony with that of the principal punishment legislation. Moreover, the allocation mechanism of the fine penalty is not scientific, and at the same time, it is also because the principle of legally prescribed punishment for a crime has not been fully implemented. Compared with our country, the foreign fine penalty is applicable to almost all crimes, and there is also a fine system for Yi Ke. The application mode of fine penalty is also quite flexible. Referring to the experience of foreign legislation and based on the reality of effective crime control in our country, our country should not only further expand the scope of application of fine penalty, To increase the allocation of fine penalties to the persons in charge of units and the direct responsible persons, and to increase the fine penalties for negligent crimes, and to establish a method of applying the fine penalty which is based on the system of selecting a section of science, and which is supplemented by the system of the same section, so as to appropriately expand the system of fine for a single section, The general provisions stipulate the principle of discretion in the system of fines for selecting sections, and at the same time should abolish the system of unlimited fines, expand the application of the system of fines of limits, and reasonably apply the system of double fines; in addition, the system of daily fines shall be introduced. We should add the system of limitation of limitation for prosecution of fine and the system of free punishment of fine.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.12

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