我国罚金刑制度研究

发布时间：2018-02-27 13:03

本文关键词： 罚金刑现状制度完善　出处：《中国政法大学》2011年硕士论文　论文类型：学位论文

【摘要】：近年来,罚金刑的扩大适用已成为各国刑罚体系改革的趋势。罚金刑的兴起符合目前刑罚轻缓化的趋向,各国学者均对罚金刑产生了浓厚的兴趣,对其进行了深入的研究。我国也顺应了这一国际性潮流,从1997年《刑法》将罚金刑扩大适用之后,到目前为止又颁布了八个刑法修正案,最近通过的《刑法修正案(八)》中,新增的罪名大部分均规定有罚金刑,并且有较多条文对罚金刑的适用进行了一定的修改。这体现出在我国罚金刑的作用越来越重要,学界对这一制度如何更进一步地予以改革和完善的讨论也越来越热烈。故本文选取我国罚金刑制度作为研究的对象。然而,罚金刑作为一种刑罚方法,学者对其的理论基础还存有异议,许多观点还对其存有偏见,认为其弊大于利。关于罚金刑的存废还有较大的争议。本文通过对罚金刑本质的把握,具体分析了罚金刑的正当性根据,比较了罚金刑的利弊,认为罚金刑这一财产刑具有合理的理论基础,应予以肯定。我国罚金刑制度体现了独有的特点,但也存在种种不合理之处。例如,我国对于罚金刑的立法设置并不科学,在适用范围、适用方式、数额规定方式、缴纳方式等方面均存在一定程度的缺陷。具体到罚金刑的实践适用层面,又存在“空判”现象多,“先缴后判”现象大量存在以及将缴纳罚金刑作为减刑和假释的先决条件等不合理的情况,不利于罚金刑发挥其固有的优势,甚至有违刑罚的权威性和严肃性。针对以上我国罚金刑制度方面的种种不理想之处,本文在文章的最后部分具体阐述了应该如何构建一个科学合理的罚金刑制度,便于罚金刑制度在我国刑罚体系中发挥更大的作用,利于与其他刑罚方法的协调,共同为刑罚目的的实现作出贡献。本文共分为三大部分,即引言、正文和结论。其中,正文包括四章。第一章是罚金刑的概述,从罚金刑的概念和特征以及中西方罚金刑制度的演进角度进行阐述,以便于对罚金刑产生一个总体的印象。第二章是适用罚金刑的理论基础,从罚金刑的本质、罚金刑的正当性根据以及有关罚金刑的利弊之争着手,肯定了罚金刑作为一种刑罚方法的合理性。第三章是对我国罚金刑制度立法现状和实践中适用现状的描述,并对此作出评析。第四章则论述了我国罚金刑的完善可从五个角度入手,分别为提高罚金刑在刑罚体系中的地位,完善罚金刑的适用范围和制度构建,以及增设罚金刑缓刑制度和罚金刑易科自由刑制度。
[Abstract]:In recent years, the expanded application of fine penalty has become the trend of the reform of penalty system in various countries. The rise of fine penalty accords with the tendency of light punishment at present, and scholars all over the world have a strong interest in fine penalty. Our country has also complied with this international trend. Since 1997, when the Criminal Law extended the application of fine penalty, we have promulgated eight amendments to the Criminal Law, which were recently adopted in the Criminal Law Amendment (8). Most of the new crimes have been stipulated fine penalty, and there are more articles on the application of fine penalty have been modified, which shows that the role of fine penalty is becoming more and more important in our country. The discussion on how to further reform and perfect this system is becoming more and more heated, so this paper chooses the fine penalty system of our country as the object of study. However, as a penalty method, scholars still disagree with its theoretical basis, and many views still have prejudice against it. It is believed that the disadvantages outweigh the advantages. There is still a great dispute about the existence or abolition of the fine penalty. This paper analyzes the justification of the fine penalty, compares the advantages and disadvantages of the fine penalty, through the grasp of the essence of the fine penalty. It is believed that the fine penalty has a reasonable theoretical basis and should be affirmed. The fine penalty system of our country reflects the unique characteristics, but there are also various unreasonable places. For example, the legislation of fine penalty is not scientific in our country. There are some defects in the scope of application, the mode of application, the way of setting the amount, the way of payment and so on. There are many phenomena of "air sentence", a large number of "first payment after sentence" phenomenon, and the unreasonable situation of paying fine penalty as a prerequisite for commutation and parole, which is not conducive to the fine penalty giving play to its inherent advantages. It even violates the authority and seriousness of punishment. In view of the above undesired aspects of the fine penalty system in our country, the last part of this article specifically expounds how to construct a scientific and reasonable fine penalty system. It is convenient for the fine penalty system to play a greater role in the penalty system of our country, to coordinate with other penalty methods and to contribute to the realization of the penalty purpose. This paper is divided into three parts: introduction, text and conclusion. Among them, the text includes four chapters. The first chapter is an overview of the fine penalty, from the concept and characteristics of fine penalty and the evolution of the western and Chinese fine penalty system. The second chapter is the theoretical basis of the application of the fine penalty, from the essence of the fine penalty, the justification of the fine penalty as well as the pros and cons of the fine penalty. It affirms the rationality of fine penalty as a penalty method. The third chapter describes the present situation of legislation and practice of fine penalty system in our country. Chapter 4th discusses the improvement of fine penalty in China from five angles, in order to improve the position of fine penalty in the penalty system, perfect the scope of application and system construction of fine penalty. As well as the addition of the system of fine suspended punishment and fine penalty Yi Ke free penalty system.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.1

【参考文献】