我国的保安处分及其完善

发布时间：2018-05-07 15:21

  本文选题：保安处分 + 社会防卫　； 参考：《南京大学》2017年硕士论文

【摘要】：保安处分是指法院依照法定程序并根据刑法的明文规定,对实施了刑事不法行为且审查时仍具有社会危险性的行为人所适用的,旨在改善危险者、防卫社会的一种与刑罚并列的刑事法律后果。早在古希腊时期,西方就有保安处分的思想及相关规定,但直至18世纪末,德国学者克莱因才明确提出"保安处分" 一词。此后,保安处分的研究逐步由自发性的零散规定转为自觉性的系统研究。近代保安处分的理论基础为社会防卫理论,且该理论的具体内涵处于不断发展之中。理论中关于保安处分与刑罚的关系有"一元论"和"二元论"之分。一元论认为二者统一于预防犯罪、防卫社会的目的,仅有量的差别而无质的差异;二元论则认为,刑罚以罪责为基础,强调对犯罪的报应,而保安处分以人身危险性为基础,强调对犯罪的预防,二者存在质的差异。二元制下,保安处分与刑罚的适用又有并科主义与代替主义之分。鉴于保安处分易被滥用的风险及我国现实的人文基础、司法环境,现阶段保安处分的地位应为:立法上的并列性,适用、执行上的补充性。我国同样存在保安处分的源流。上古时期就已存在保安思想,且该思想被世代继承并形成了相应的具体措施。民国时期,受西学东渐影响,立法中出现了类似西方保安处分的措施,并于1935年建立了系统的保安处分制度。新中国成立后,规定有保安处分制度的民国法律被废止,保安处分制度亦不复存在。现行法律法规中虽存在许多保安性措施,但在法源、体系、程序等方面都存在诸多问题。我国保安处分制度的构建应以刑事法典为依托。具体而言:在实体方面,保安处分的适用条件应包括不法行为与人身危险性,保安处分的种类应包括收容教养、强制医疗、强制劳动、保安监禁、禁止令、保护观察、驱逐出境、善行保证、保安没收九种。在程序方面,保安处分的适用应坚持程序司法化,并形成有效的监督制约机制。此外,应建立或完善相应的配套制度设施以保障保安处分制度的有效实施。
[Abstract]:Security measures refer to the application of the court, in accordance with legal procedures and in accordance with the express provisions of the criminal law, to the perpetrators who have committed a criminal unlawful act and are still socially dangerous at the time of examination, with the aim of improving the dangerous person, Defense society is a kind of criminal legal consequence juxtaposed with penalty. As early as the ancient Greek period, the western countries had the thought and the related stipulation of the security measure, but it was not until the end of the 18th century that the German scholar Klein put forward the word "security measure". Since then, the study of security measures has gradually changed from spontaneous scattered regulations to systematic study of self-consciousness. The theoretical basis of modern security measures is the theory of social defense, and the specific connotation of the theory is constantly developing. In theory, there are monism and dualism in the relation between security measures and penalty. Monism holds that the two are unified in crime prevention and the purpose of defending society, with only quantitative differences and no qualitative differences. Dualism holds that punishment is based on guilt and emphasizes retribution for crime, while security measures are based on personal dangerousness. Emphasis on the prevention of crime, there is a qualitative difference between the two. Under dualistic system, the application of security measure and penalty is divided into the doctrine of amalgamation and the doctrine of substitution. In view of the risk that security measures are easy to be abused and the humanistic basis of our country's reality, the status of security measures at present should be: the juxtaposition of legislation, the application of security measures and the supplement of enforcement. China also has the source of security measures. Security thought existed in ancient times, and this thought was inherited from generation to generation and formed corresponding concrete measures. In the period of the Republic of China, influenced by the gradual development of western learning to the east, some measures similar to western security measures appeared in the legislation, and a systematic system of security measures was established in 1935. After the founding of the people's Republic of China, the Republic of China laws providing for security measures were abolished and the security measures system ceased to exist. Although there are many security measures in current laws and regulations, there are many problems in legal source, system, procedure and so on. The construction of the system of security measures in our country should be based on the criminal code. Specifically, in the case of entities, the applicable conditions for security measures should include unlawful acts and personal danger, and the types of security measures should include institutionalization, compulsory medical treatment, compulsory labour, security imprisonment, restraining orders, protective observations, Deportation, good deeds guarantee, security confiscation of nine. In the aspect of procedure, the application of security measures should adhere to the judicial procedure and form an effective mechanism of supervision and restriction. In addition, we should establish or perfect the corresponding supporting system facilities to ensure the effective implementation of the security sanction system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1
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本文编号：1857440