没收财产刑的反思

发布时间：2018-07-20 09:33

【摘要】：没收财产刑在我国现行刑法中是两种财产刑中的一种,目前主要针对的是危害国家安全的犯罪和一些严重的贪利型犯罪。该刑罚的处罚内容是犯罪行为人的个人合法财产,而对于犯罪过程中的非法所得物、犯罪关联物以及其他违禁物品,主要通过非刑罚方法的特殊没收制度处理。与罚金刑不同,没收财产刑仅以自然人为处罚对象,没有规定对单位财产的罚没。我国刑法中还规定,罚没犯罪行为人财产时,要除去其家人应有的份额,并保留一定的费用以保障犯罪行为人及其家人的生活所需。世界上很多国家都曾经有过类似于没收财产刑的规定,主要存在于资本主义社会之前的奴隶制社会和封建制社会。在17世纪欧洲启蒙运动之后,人们的思想由于受到自由、平等、博爱观念的影响,尊严意识逐渐觉醒,私有财产神圣不可侵犯的观念逐渐萌芽,法律也朝着更加人道和宽容的方向发展。欧洲等地较先受到文化启蒙的国家,相继在宪法中承认私权神圣,在刑法中废除了作为刑罚存在的没收财产刑。现在除我国外,只剩蒙古、越南等少数国家仍存在没收财产刑。而作为非刑罚措施的特殊没收制度,在许多国家仍有踪迹可循。很多学者认为现代的没收财产刑已失去了封建社会中没收的重刑本质,有时没收财产刑的数额甚至不及罚金刑高。并且认为在现代社会的法律体系下,没收财产刑会株连无辜。实践中,由于立法上的粗疏,导致司法上没收财产刑的适用率低,执行情况不理想。笔者通过对没收财产刑进行反思,认为没收财产刑被诟病的原因不在于该制度本身的缺陷,而是没有把没收财产刑放在正确的位置上。再者,没收财产刑与罚金刑两种财产刑的功能没有被认清楚,导致立法和司法上适用的混乱。因此,笔者认为应当在认清两种财产刑功能的基础上,调整财产刑的配置,让没收财产刑发挥重刑效果,使罚金刑规制贪利性犯罪和轻型犯罪。此外,还要完善量刑规则,确定科学合理的量刑标准,使司法判案和裁判执行都能于法有据。在立法、司法的全过程中要严格贯彻罪刑法定、罪责刑相适应、罪责自负等刑法的基本原则,以达到刑法的统一性和个案平衡。
[Abstract]:Confiscation of property penalty is one of the two kinds of property punishment in the current criminal law of our country. At present, it is mainly aimed at the crime of endangering national security and some serious crimes of embezzlement. The penalty content of the penalty is the personal lawful property of the criminal perpetrator, and the illegal gains, criminal related objects and other contraband goods in the course of the crime are mainly dealt with by the special confiscation system of the non-penalty method. Different from the fine penalty, the confiscation penalty is only natural punishment, and there is no penalty for unit property. It is also stipulated in our criminal law that when confiscating the property of the perpetrator, the share of his family should be removed, and a certain amount of expenses should be retained to ensure the life needs of the perpetrator and his family. Many countries in the world used to have provisions similar to confiscation of property, mainly existed in the slavery society and feudal society before the capitalist society. After the European Enlightenment of the 17th century, people's minds were influenced by the concepts of freedom, equality, fraternity, a sense of dignity, and the idea of the sacredness and inviolability of private property began to sprout. The law is also moving in a more humane and tolerant direction. Europe and other countries that were first enlightened by culture have successively recognized the sacredness of private rights in their constitutions and abolished the penalty of confiscation of property which existed as punishment in criminal law. In addition to China, only Mongolia, Vietnam and a few countries still exist confiscation of property penalty. As a non-penalty measure, the special confiscation system can still be followed in many countries. Many scholars believe that the modern confiscation of property penalty has lost the essence of confiscation in feudal society, sometimes the amount of confiscation of property punishment is not as high as the fine penalty. And under the legal system of modern society, the confiscation of property will even innocent. In practice, because of the carelessness in legislation, the judicial application rate of confiscation of property penalty is low, and the execution is not satisfactory. Through reflection on the confiscation of property penalty, the author thinks that the reason for the criticism of the confiscation of property punishment is not the defects of the system itself, but not the confiscation of property punishment on the correct position. Furthermore, the function of confiscation of property penalty and fine penalty is not clearly recognized, resulting in legislative and judicial confusion. Therefore, the author believes that on the basis of recognizing the two functions of property punishment, we should adjust the disposition of property penalty, let the confiscation of property penalty exert the heavy penalty effect, and make the fine punishment regulate the crime of corruption and light crime. In addition, we should perfect the sentencing rules, determine the scientific and reasonable sentencing standards, so that the judicial decision and the execution of the judgment can be based on the law. In order to achieve the unity of criminal law and the balance of individual cases, the basic principles of criminal law should be strictly carried out in the whole process of legislation and judicature.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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