我国死缓制度立法研究

发布时间：2018-04-24 22:21

本文选题：死缓 + 死刑　；参考：《安徽财经大学》2017年硕士论文

【摘要】：本文从死缓的起源着手分析,得出死缓的本质是一种附条件暂时不执行死刑的死刑执行制度,死刑判决是适用死缓的前提条件,即无死刑就无死缓。结合我国实际,我国应当在肯定保留死刑和死缓制度同时存在的合理性和现实必要性的前提下,坚持少杀、慎杀的刑事政策,以限制和减少死刑的执行,从而最终达到改造、教育犯罪分子的刑罚价值。从世界废除死刑的大背景和我国对死刑执行的门槛步步提高的立法倾向性来看,死缓制度的现实直接目的就是限制和减少死刑的执行。为达此目的,就需要准确的理解死缓适用和变更执行的条件。我国死缓制度尚存诸多不足之处,主要体现在规定死缓定义抽象、模糊,对其变更执行的适用条件的含义界定不统一。从死缓设立之目的出发,对“罪行极其严重”的界定只能从行为的主客观方面入手,而不能包含人身危险性的内容,也即从刑法惩罚的对象来看,“罪行极其严重”是一种行为刑法观的表述。人身危险性是指犯罪分子再犯的可能性,强调的是特殊预防和犯罪分子是否具有改造和教育可能性,是一种行为人刑法观的表述。因此,只有人身危险性极高的犯罪分子才应当被执行死刑,即人身危险性极高才是“必须立即执行”的实质含义。进而得出“罪行极其严重”是进入死刑判决的唯一标准,而人身危险性的高低能且只能作为区别死缓和死刑立即执行的标准。在明确死缓适用条件的实质含义后,结合死缓减少和限制死刑执行之设立目的,从提高死刑执行门槛和降低死缓门槛两个角度出发,针对死缓立法上的不足提出相对应的完善之策,通过建立先死刑判决,再死缓,再死刑立即执行的梯形递进的模式限制死刑执行。因此,笔者对刑法第48条重构为:死刑只适用罪行极其严重的犯罪分子。对于判处死刑的犯罪分子,应当同时宣告缓期两年执行;若其具有极高的人身危险性,可以立即执行死刑。其主要目的有两点,其一,在刑法典中进一步提高死缓的地位;其二,明确界定人身危险极高才是死刑犯应该被执行死刑的唯一标准,更加明确地指导司法适用死缓。此外,笔者对刑法第50条的死缓变更执行的条件进一步完善,将“故意犯罪,情节恶劣”限定为是处最低刑为5年以上有期徒刑的故意犯罪,进一步提高死缓进入死刑执行的门槛;将考验期间重大立功表现的变更执行结果重构为立即减为无期徒刑;增加考验期一般立功表现的变更执行结果,将其结果规定为:两年考验期满后减为25年有期徒刑。其目的是在坚守罪责刑相适应的刑法原则前提下,更合理地重构死缓变更执行的刑罚体系,以此更大限度地调动死缓犯罪分子接受改造和教育的积极性,切实减少死刑执行的数量。
[Abstract]:Based on the analysis of the origin of death reprieve, this paper draws a conclusion that the essence of death reprieve is a system of execution of death penalty with conditions that do not carry out the death penalty temporarily. Death penalty sentence is the precondition of applying death reprieve, that is, there is no death sentence without death penalty. In combination with the reality of our country, our country should insist on the criminal policy of killing less and carefully under the premise of affirming the rationality and practical necessity of both the retention of the death penalty and the suspension of death penalty, so as to limit and reduce the execution of the death penalty, so as to achieve the ultimate reform. The penalty value of educating criminals. From the background of the abolition of the death penalty in the world and the legislative tendency to raise the threshold of execution of the death penalty in our country, the immediate purpose of the death penalty suspension system is to limit and reduce the execution of the death penalty. To this end, it is necessary to accurately understand the conditions for deferral application and change execution. There are still many deficiencies in the system of death-suspension in our country, which is mainly reflected in the abstract and fuzzy definition of death reprieve, and the inconsistent definition of the meaning of the applicable conditions for its change and execution. Starting from the purpose of suspending the establishment of the death penalty, the definition of "extremely serious crime" can only start from the subjective and objective aspects of the act, and not include the content of personal dangerousness, that is, the object of punishment in criminal law. "the crime is extremely serious" is a kind of behavior criminal law view expression. Personal dangerousness refers to the possibility of reoffending by criminals, which emphasizes the special prevention and the possibility of reformation and education of criminals, which is the expression of the criminal law view of the perpetrator. Therefore, only criminals with very high personal danger should be executed, that is, very high personal danger is the essential meaning of "must be executed immediately". The conclusion is that "the crime is extremely serious" is the only standard to enter the death penalty, and the personal danger can only be used as the standard to distinguish the death penalty from the death penalty immediately. After clarifying the essential meaning of the condition of death reprieve, combining the purpose of reducing death penalty and restricting the execution of death penalty, the author sets out from two angles: raising the threshold of execution of death penalty and lowering the threshold of death reprieve. In view of the deficiency of death penalty suspension legislation, the author puts forward the corresponding perfect measures, and restricts the execution of death penalty by establishing the trapezoidal progressive mode of first death sentence, then death penalty suspension, and then execution immediately. Therefore, the author reconstructs Article 48 of the Criminal Law as: the death penalty is only applicable to criminals who commit extremely serious crimes. Criminals sentenced to death shall be suspended for a period of two years at the same time; if they have a high degree of personal danger, the death penalty may be executed immediately. Its main purpose has two points, one is to further improve the status of death penalty reprieve in the Criminal Code; the other is to clearly define that the extremely high personal danger is the only standard for the death penalty to be executed, and to guide the judicial application of the death penalty suspension more clearly. In addition, the author has further improved the conditions for the execution of the suspension of death penalty in Article 50 of the Criminal Law, limiting "intentional crime, aggravated circumstances" as an intentional crime punishable by a minimum penalty of more than five years of fixed-term imprisonment. Further raising the threshold for the death penalty to enter the execution of the death penalty; reconstructing the results of the changes in the performance of major meritorious service during the test period to immediate commutation to life imprisonment; and increasing the results of the changes in the performance of the general meritorious service during the test period, The result will be reduced to 25 years after the two-year test expires. Its purpose is to, on the premise of adhering to the principle of criminal law that the crime, responsibility and punishment adapt to the punishment, to more reasonably reconstruct the penalty system of changing the execution of the death penalty, so as to arouse the enthusiasm of the criminals on the death penalty reprieve to receive reform and education to a greater extent. Effectively reduce the number of executions.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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