终身监禁：一个中国问题的思考

发布时间：2018-07-07 21:27

本文选题：终身监禁 + 死刑废止　；参考：《南京师范大学》2017年硕士论文

【摘要】：终身监禁出现至今已有百余年历史,它在国外一直扮演着最严厉或是严厉性仅次于死刑的刑罚的角色,是当今世界主流刑罚之一。在《刑法修正案(九)》出台之前,我国学者一直就我国死刑废止之路进行讨论——终身监禁能否作为废止死刑后代替死刑的最严重的刑罚。2015年颁布了《刑法修正案(九)》后,终身监禁作为配置给贪污受贿犯罪的特殊规定首次入刑,我国以法律明确了终身监禁的概念。2016年白恩培案也是我国首次适用终身监禁这一刑罚。这一制度创新在学界引起了巨大的讨论。纵观我国几十年的刑罚变革历史,在我国法制现代化进程中,刑罚观念在随着时代发展而变化。尤其是改革开放以后,我国立法理念、刑事政策等都不断向现代化的人道主义理念看齐,刑罚执行措施也在不断更新,变得更加尊重人权。本文第一章从《刑法修正案(九)》引入终身监禁入手,交代我国引入终身监禁的背景,明确我国刑法中的终身监禁的概念和性质,划清其与国外终身监禁概念的界限,对本文中的终身监禁一个概念进行界定。第二章阐述了终身监禁的全球适用情况,分成废除死刑后替代死刑的措施以及作为独立刑种两种情况进行考察,列举了全球多个国家适用终身监禁的情况并且从刑罚观念的变化入手,讨论目前终身监禁的理论争议——终身监禁是存是废、终身监禁能不能代替死刑。针对这个问题,本文得出的结论是终身监禁在新刑罚观念的影响下始终是全球主流刑罚之一,即使终身监禁有其弊端,但在现阶段它是替代死刑的第一选择,且在新刑罚观念的影响下,绝对终身监禁正经历向相对终身监禁的转变,这对我国极具参考意义。第三章本文依据我国学界对终身监禁能否代替死刑的争论,认为终身监禁的缺点不可否认,但在我国目前在减少适用死刑的背景下,终身监禁将会扩大适用面,以独立刑种进入我国刑法,与可以减刑、假释的无期徒刑共同承担中等至偏重这一段刑罚的使命,此外还对终身监禁未来以独立刑种进入我国刑法后随之而来的适用主体问题以及对现在无期徒刑的调整给出了方案,即认为未成年人、妇女和已满75周岁的老年人并不适合适用终身监禁,并且如果适用终身监禁应当削减适用无期徒刑的罪名,以更好的与终身监禁互相配合构成合适的刑罚的梯度。总而言之,终身监禁制度首次入刑意义重大,它弥补了我国死刑与无期徒刑之间的落差,构建了合理的阶梯式的刑罚结构,为我国探索废止死刑迈出了第一步,有利于我国法治化建设,是一次意义重大的变革。
[Abstract]:Life imprisonment has a history of more than 100 years. It has been playing the role of the harshest or harshest punishment after the death penalty in foreign countries. It is one of the mainstream penalties in the world. Before the introduction of the Criminal Law Amendment (9), Chinese scholars have been discussing the way to abolish the death penalty in China-whether life imprisonment can be regarded as the most serious penalty to replace the death penalty after the abolition of the death penalty. [9] after the promulgation of the Criminal Law Amendment (9) in 2015, Life imprisonment, as a special provision for the crime of corruption and bribery, is the first time that the concept of life imprisonment is defined by law in our country. The 2016 Bai Enpei case is also the first time that life imprisonment is applied in our country. This system innovation has aroused the huge discussion in the academic circles. Throughout the history of penalty reform in China, the concept of penalty changes with the development of the times in the process of modernization of our legal system. Especially after the reform and opening up, our legislative concept, criminal policy and so on are constantly in line with the modern humanitarian concept, penalty enforcement measures are also constantly updated, becoming more respect for human rights. The first chapter of this paper begins with the introduction of life imprisonment in the Criminal Law Amendment (9), explains the background of the introduction of life imprisonment in our country, clarifies the concept and nature of life imprisonment in our criminal law, and makes a clear distinction between the concept of life imprisonment and the concept of life imprisonment abroad. This paper defines the concept of life imprisonment. Chapter II describes the global application of life imprisonment, divided into measures to replace the death penalty after the abolition of the death penalty, as well as an independent type of punishment to investigate. This paper lists the application of life imprisonment in many countries all over the world and discusses the theory of life imprisonment from the change of the concept of penalty. It discusses whether life imprisonment is the survival or abolition of life imprisonment and whether life imprisonment can replace the death penalty. In view of this problem, the conclusion reached in this paper is that life imprisonment is always one of the mainstream penalties in the world under the influence of the new penalty concept. Even though life imprisonment has its drawbacks, it is the first choice to replace the death penalty at the present stage. Under the influence of the new concept of penalty, absolute life imprisonment is undergoing the transition to relative life imprisonment, which is of great reference significance to our country. In the third chapter, based on the debate on whether life imprisonment can replace the death penalty, the author holds that the shortcomings of life imprisonment can not be denied, but under the background of reducing the application of death penalty in our country, life imprisonment will expand the scope of application. Entering China's criminal law with independent punishment, together with life imprisonment, which can be commuted and released on parole, they undertake the mission of medium to heavy punishment. In addition, it also gives a plan for the subject of application of life imprisonment in the future after its entry into our criminal law as an independent sentence, as well as for the adjustment of the present life imprisonment, that is, the minor is considered as a minor. Women and older persons over the age of 75 are not suitable for life imprisonment, and if life imprisonment is applied, the offence of life imprisonment should be reduced in order to better match life imprisonment with an appropriate penalty gradient. In a word, the system of life imprisonment is of great significance for the first time. It makes up the gap between death penalty and life imprisonment in our country, constructs a reasonable structure of punishment step by step, and takes the first step for our country to explore and abolish the death penalty. Is advantageous to our country rule by law construction, is a significant transformation.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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