新近刑法修正中刑罚结构变动研究

发布时间：2018-05-13 18:03

本文选题：刑罚结构 + 立法变化　；参考：《河北大学》2017年硕士论文

【摘要】：进入21世纪以来,我国社会面临的犯罪态势非常严峻,我国刑罚在预防犯罪和惩罚犯罪方面的“有限性”逐渐显露,刑法的效益也日趋下降。鉴于此,刑罚结构的改革和完善问题逐渐受到学术界的亲睐,并且也越来越受国家立法机关的重视。有学者指出:刑罚结构是指各刑种在刑罚体系的配置比重,但刑罚结构不是各种刑罚种类的简单堆砌,它也是一个系统的结构,是由许许多多的要素构成的。根据系统论的“优化的整体功能大于各部分功能之和”的理论,刑罚内部的各个要素有机的结合起来,形成良好的运行结构,刑罚的功能和优势才能充分发挥出来。刑罚结构的改革与完善,不仅要充分了解现行刑法中有关刑罚结构的规定,更应该了解近些年来我国刑罚结构发生了哪些变动,尤其是要了解2011年的《刑法修正案(八)》和2015年的《刑法修正案(九)》的颁布对我国刑罚结构的变动产生了哪些影响。通过梳理和分析《刑法修正案(八)》和《刑法修正案(九)》可以看到近些年来我国刑罚结构发生了明显的变化:首先,削减了死刑,死刑在刑罚体系中的比重越来越小,死刑在刑罚结构中的中心地位逐渐被蚕食。其次,提高了自由刑的上限,自由刑与死刑的衔接更加紧密,一定程度上改变了我国“生刑过轻”的局面;管制刑的完善,促使自由刑“轻重有序”更加科学合理。再次,罚金刑适用范围扩大、追缴制度的完善,进一步提高了罚金刑在刑罚结构中的地位。最后,“社区矫正”、“禁止令”、“禁止从事相关职业”等非刑罚处理方法的入刑,使我国非刑罚处理方法的适用范围进一步扩大,推动了行刑社会化,同时也促使我国刑罚结构向轻缓化的方向发展。当然我们也要看到目前我国刑罚结构中存在的一些问题,比如:我国的刑罚结构仍然比较重、刑罚种类不足、刑罚种类配置失调、刑罚幅度失调等等。我国刑罚结构改革和完善要以系统化的理论为指导,以我国刑罚结构的现状为基础,以西方发达国家刑罚结构改革的经验为参考,准确把握我国刑罚结构改革与完善的航向。在宏观上,要明确我国刑罚结构未来变化的大方向,那就是坚持走轻缓化的道路;在微观上,在充分考虑我国重刑刑罚结构的现实国情的基础上,我国应坚持单极化的发展方向。在具体的调整路径上,坚持以刑罚种类与刑罚幅度的合理调整以来推动刑罚结构的优化,包括:第一,增设和完善以资格刑为核心的轻刑种类;第二,进一步削减死刑,合理配置自由刑;第三,进一步扩大罚金刑适用范围,提高罚金刑在刑罚体系中的地位,同时严格限制没收财产刑的适用;第四,协调罪种间的法定刑幅度和合理分档法定刑幅度。
[Abstract]:Since the beginning of the 21st century, the situation of crime facing our society is very severe. The "limitation" of criminal punishment in crime prevention and punishment is gradually revealed, and the benefit of criminal law is also declining day by day. In view of this, the question of the reform and perfection of penalty structure has been paid more and more attention by the state legislature. Some scholars have pointed out that the penalty structure refers to the proportion of each kind of punishment in the penalty system, but the penalty structure is not a simple stacking of various kinds of penalties, it is also a systematic structure, which is composed of many elements. According to the theory of system theory that "the whole function of optimization is greater than the sum of the functions of each part", the elements inside the penalty are organically combined to form a good operation structure, and the function and advantage of the penalty can be brought into full play. In order to reform and perfect the penalty structure, we should not only fully understand the relevant provisions of the current criminal law, but also understand what changes have taken place in the criminal structure of our country in recent years. In particular, it is necessary to understand how the promulgation of the Criminal Law Amendment (8) in 2011 and the Criminal Law Amendment (9) in 2015 have influenced the changes in the penal structure of our country. By combing and analyzing the Criminal Law Amendment (8) and the Criminal Law Amendment (9), we can see that in recent years, there have been obvious changes in the criminal structure of our country. First, the death penalty has been reduced, and the proportion of the death penalty in the penalty system has become smaller and smaller. The central position of the death penalty in the penalty structure was gradually eroded. Secondly, the upper limit of free punishment is raised, the connection between free punishment and death penalty is closer, and the situation of "birth punishment is too light" is changed to a certain extent, and the perfection of control punishment makes the freedom punishment "light and orderly" more scientific and reasonable. Thirdly, the scope of application of fine is expanded and the system of recovery is improved, which further improves the position of fine in the structure of penalty. Finally, "Community Correction", "Prohibition order", "Prohibition of engaging in related occupations" and other non-penalty treatment methods have further expanded the scope of application of non-penal treatment methods in China, and promoted the socialization of execution. At the same time, it also promotes the development of penalty structure in China. Of course, we also need to see some problems existing in the present penalty structure of our country, such as: the penalty structure is still heavy, the penalty type is insufficient, the penalty type is disordered, the penalty range is unbalanced, and so on. The reform and perfection of our country's penalty structure should be guided by systematic theory, based on the present situation of our country's penalty structure, and based on the experience of the western developed countries. We should accurately grasp the course of the reform and perfection of our country's penalty structure. At the macro level, it is necessary to make clear the general direction of the future changes in the penal structure of our country, that is, to adhere to the road of slowing down; at the micro level, on the basis of fully considering the actual situation of the heavy penalty structure of our country, China should adhere to the development direction of unipolarization. In the specific adjustment path, we insist on promoting the optimization of the penalty structure since the reasonable adjustment of the penalty type and the penalty range, including: first, to add and perfect the light punishment category with the qualification penalty as the core; second, to further reduce the death penalty. Third, to further expand the scope of application of fine, improve the status of fine in the penalty system, while strictly limiting the application of confiscation of property penalty; fourth, To coordinate the legal range of punishment between the species of crime and the range of legal penalties of reasonable classification.
【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】：D924.1

【相似文献】