论虐待罪的立法完善
发布时间：2018-07-16 08:37
【摘要】：虐待是一个全球问题,人权意识的普及加速了人们追求平等的脚步,反对各种形式的虐待成为全球关注的话题。虽然我国刑法第260条规定的虐待罪就是刑法对虐待行为的应对,但是这种规制并没有得到有效地发挥,究其原因很多,虐待罪本身所存在的立法缺陷便是其中之一。我国刑法将虐待罪规定为“告诉才处理”,仅此就放纵了很多犯罪行为的发生,而且立法只有“情节恶劣”的规定,并没有对“情节恶劣”做出解析和限定,这就在无形中扩大了司法机关的自由裁量权,使得很多本应由刑法制裁的虐待行为被忽视甚至被默许,加之对虐待罪的加重结果的规定过于笼统,极易造成重罪轻罚,而且立法中对犯罪主体的规定过于狭隘,使得立法供给与法益保护之间产生一定的冲突,无法解决目前社会中大量出现的“虐待行为”。为适应社会的发展,应当对我国的虐待罪进行一定的修改,扩大虐待罪的犯罪主体至“具有监护、照料、教育、监管等职责之人”,将发生于这些特定关系人之间的虐待行为纳入到刑法规制中来,同时提高虐待罪的最低法定刑,使其与其他人身伤害等犯罪的法定刑持平,对虐待过程中出现的重结果明确适用其他刑罚,取消“告诉才处理”的规定,且为解决该罪的法定刑规定过于单调,可以增加财产刑和资格刑的适用,以正确发挥刑法对社会的保障作用。
[Abstract]:Abuse is a global problem. The popularization of human rights has accelerated people's pursuit of equality, and the opposition to various forms of abuse has become a topic of global concern. Although the 260th article of maltreatment in our criminal law is the response to abuse in the criminal law, this regulation has not been effectively played, and the reasons are many and abused. The legislative defect of the crime itself is one of them. In our criminal law, the crime of abuse is defined as "telling only". Only this has indulged the occurrence of a lot of criminal acts, and the legislation has only the provisions of "bad plot", and it does not make an analysis and limit to the "bad plot", which expands the freedom of the judiciary in the invisible. The right of discretion makes many abuses which should be punished by criminal law are ignored or even tacitly allowed. In addition, the provisions on the aggravated result of the crime of abuse are too general, and it is very easy to cause serious crime and light punishment. Moreover, the provisions of the criminal subject are too narrow in the legislation, which makes a certain conflict between the legislative supply and the legal benefit protection and can not solve the present society. In order to adapt to the development of society, in order to adapt to the development of the society, we should make certain amendments to the crime of abuse in our country, expand the criminal subject of the crime of abuse to "the person with guardianship, care, education, supervision and so on", and bring the abuses between these specific persons into the criminal law regulation, and increase the abuse at the same time. The minimum statutory sentence to be a crime makes it equal to the legal punishment of other crimes, such as other personal injuries. It clearly applies other penalties to the heavy results in the process of abuse, cancels the provisions of "telling only" and is too monotonous to solve the crime, and can increase the application of property punishment and qualification punishment, so as to correctly play the criminal law to the society. The protective effect of the meeting.
【学位授予单位】：昆明理工大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.34
本文编号：2125852
[Abstract]:Abuse is a global problem. The popularization of human rights has accelerated people's pursuit of equality, and the opposition to various forms of abuse has become a topic of global concern. Although the 260th article of maltreatment in our criminal law is the response to abuse in the criminal law, this regulation has not been effectively played, and the reasons are many and abused. The legislative defect of the crime itself is one of them. In our criminal law, the crime of abuse is defined as "telling only". Only this has indulged the occurrence of a lot of criminal acts, and the legislation has only the provisions of "bad plot", and it does not make an analysis and limit to the "bad plot", which expands the freedom of the judiciary in the invisible. The right of discretion makes many abuses which should be punished by criminal law are ignored or even tacitly allowed. In addition, the provisions on the aggravated result of the crime of abuse are too general, and it is very easy to cause serious crime and light punishment. Moreover, the provisions of the criminal subject are too narrow in the legislation, which makes a certain conflict between the legislative supply and the legal benefit protection and can not solve the present society. In order to adapt to the development of society, in order to adapt to the development of the society, we should make certain amendments to the crime of abuse in our country, expand the criminal subject of the crime of abuse to "the person with guardianship, care, education, supervision and so on", and bring the abuses between these specific persons into the criminal law regulation, and increase the abuse at the same time. The minimum statutory sentence to be a crime makes it equal to the legal punishment of other crimes, such as other personal injuries. It clearly applies other penalties to the heavy results in the process of abuse, cancels the provisions of "telling only" and is too monotonous to solve the crime, and can increase the application of property punishment and qualification punishment, so as to correctly play the criminal law to the society. The protective effect of the meeting.
【学位授予单位】：昆明理工大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.34
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