反思与重构：论我国刑法修改方式的科学化

发布时间：2018-04-21 06:03

本文选题：刑法修正案 + 单行刑法　；参考：《甘肃政法学院》2014年硕士论文

【摘要】：刑法修改是对《刑法》条文进行修改、补充的一种重要的立法工作,目前西方国家的刑法修改主要采用刑法修正案、单行刑法以及附属刑法三种方式,我国在经历了1979、1997年两次刑法的制定和修订工作后,已经能够成熟的运用刑法修正案对现有刑法条文进行部分的修改与补充,迄今共通过八个刑法修正案。然而,频繁修改的背后带来了许多问题亟待去解决。对此,应该在正确认识刑法的价值功能,兼顾社会防卫与人权保障的前提下,理性的划清刑法介入领域,合理的确定拟修改的内容。避免将刑法修改仅仅定位于弥补法律漏洞这一错误倾向,因为这将会失去刑法的根基,罪刑法定与刑法谦抑。刑法根基不容动摇,而且是修法必须坚持的指导思想。就目前刑法修改而言,由于过多赋予刑法调控社会关系的责任,导致刑法谦抑未能得到良好体现。同时,单一刑法修改方式已不足以应对复杂的社会变动,需要重新审视现有刑法修改方式,并考虑从多种途径进行完善。在此,有必要建立刑法修改的跟踪评估机制,动态管控修改内容社会适用效果,以便及时进行矫正。基于上述认识,本文着重解决刑法修改到底该修什么、该如何去修的问题,并试图构建更为科学合理的刑法修改路径,从而切实提升刑法立法质量。
[Abstract]:The amendment of the criminal law is an important legislative work to amend the provisions of the criminal law and supplement the provisions of the criminal law. At present, the amendment of the criminal law, the single criminal law and the subsidiary criminal law are mainly adopted in the amendment of the criminal law in the western countries. After having experienced the work of making and revising the criminal law for 19791997 years and two times, China has been able to apply the amendment of the criminal law to maturity. There are eight amendments to the provisions of the existing criminal law. However, there have been a total of eight amendments to the criminal law. However, there are many problems behind the frequent revisions. Therefore, we should rationally understand the value function of the criminal law and take into account the social defense and human rights protection, and rationally define the field of criminal law intervention, and make reasonable determination. It is a wrong tendency to avoid the amendment of the criminal law only to make up the loopholes of the law, because it will lose the foundation of the criminal law, the legality of the criminal and the criminal law and the modesty of the criminal law.
The foundation of the criminal law is not to be shaken, and it is the guiding ideology that the law must be upheaval. As far as the amendment of the criminal law is concerned, due to the excessive empower of the criminal law to regulate the social relations, the modesty of the criminal law has not been well embodied. At the same time, the modification of a single criminal law is not enough to cope with the complicated social changes, and it is necessary to reexamine the amendment of the existing criminal law. In this way, it is necessary to establish a tracking evaluation mechanism to modify the criminal law so as to dynamically control the effect of modifying the content of the society in order to correct it in time.
Based on the above understanding, this paper focuses on solving the problem of the revision of the criminal law and how to repair it, and try to build a more scientific and reasonable way to modify the criminal law so as to improve the quality of the criminal law.

【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924

【参考文献】