论责任主义在死刑裁量中的适用
发布时间：2018-08-23 20:04
【摘要】：责任主义刑法是当代刑法的潮流。刑罚以责任为基础，没有责任就没有刑罚。因而责任主义既是一种观点的主张，又是刑法的一项基本原则，与罪刑法定原则、法益保护原则一同共同支配着刑法的机能。坚持把责任作为犯罪成立要件与刑罚裁量的基准——无责任便无犯罪，亦无刑罚可言。这样才能在惩罚犯罪的同时，实现法益保护以及犯罪的预防。死刑是刑法中最为严厉的刑罚手段，更应当贯彻责任主义，从而达到以“少杀”作为观念、以“慎杀”作为手段的政策要求。 在古代社会中，死刑曾盛极一时。随着现代科学文明和生产力的巨变，人权意识逐渐觉醒，，人们对死刑的存废态度也产生了重大的分歧。早在18世纪中叶，意大利著名刑法学家切萨雷·贝卡利亚在其《论犯罪与刑罚》中就提出“滥施极刑从未使人改恶从善”的观点，强调死刑的不合理，并提出反对死刑的理由。随着时间的推移，尤其是在二战后，愈来愈多的国家在刑事立法方面开始主张废除死刑。据统计，于1989年通过的旨在废除死刑的《公民权利和政治权利国际公约》第二任择议定书，到2013年，已获得76个国家的批准；超过150个国家已废除或不再执行死刑。2012年，联合国193个会员国中有174个都没有执行死刑。时至今日，死刑存废的争论从未休止。保留死刑的学者主张死刑是人道的、符合理性的刑罚方法，认为死刑并不违反矫正犯罪的理念，是一种平等、公正的刑罚制度，不仅有巨大威慑作用，还有利于维护善良风俗和社会秩序，符合刑罚报应的目的。废除死刑的学者主张死刑是反人道、野蛮的刑罚方法，认为死刑不利于矫正犯罪、改善犯罪人，是一种违反平等、公正的刑罚制度，不仅起不到威慑作用，还有悖于社会发展的方向，违反教育刑、目的刑的目的。 除引言和结语外，文章从三个部分论述了责任主义在裁量死刑中的适用。 第一部分：开宗明义，对责任主义的相关知识进行归纳总结。首先，以责任的含义为切点，从责任主义内涵、要素、机能、结果无价值论和行为无价值论对责任主义的影响，概要的介绍了责任主义。其次，从历史的角度介绍了责任主义的不同学说。最后，从责任主义在刑法体系的地位、与刑法明文规定的基本原则以及与裁量死刑的关系三个层面论述了责任主义在我国刑法体系内以及死刑适用过程中的尴尬境地。 第二部分：主要论述了责任主义与我国刑法体系的关系。分别从责任主义与我国刑法基本原则的关系、责任主义与我国犯罪构成体系的关系、以及责任主义我国死刑裁量之间三个层面宏观地论述了责任主义与我国死刑裁量的关系。 第三部分：对责任主义如何在死刑裁量中的具体运用进行论述，是本文的核心。主要包括以下几个方面：故意的责任、事实认识错误的责任、责任能力的责任、结果加重犯的责任、责任要件内的定罪情节与责任要件外的量刑情节，共五个部分分别进行论述。
[Abstract]:Criminal law of responsibility doctrine is the trend of contemporary criminal law.Penalty is based on responsibility and there is no penalty without responsibility.Therefore, responsibility doctrine is not only a viewpoint, but also a basic principle of criminal law. It controls the function of criminal law together with the principle of legality of crime and punishment and the principle of protection of legal interests. Only in this way can we realize the protection of legal interests and the prevention of crimes while punishing crimes. Death penalty is the most severe means of punishment in criminal law, and more importantly, we should carry out the responsibility doctrine, so as to achieve the policy requirements of "less killing" as the concept and "cautious killing" as the means.
In the middle of the 18th century, the famous Italian criminal jurist Cesare Beccaria put forward in his book On Crime and Penalty that "Extreme punishment should be executed indiscriminately". With the passage of time, especially after World War II, more and more countries began to advocate the abolition of the death penalty in criminal legislation. According to statistics, the Second International Covenant on Civil and Political Rights, adopted in 1989, aims to abolish the death penalty. By 2013, the Optional Protocol had been ratified by 76 countries; more than 150 countries had abolished or ceased to execute the death penalty. In 2012, 174 of the 193 member states of the United Nations did not execute the death penalty. For the death penalty does not violate the concept of correcting crime, is an equal and just penalty system, not only has a great deterrent effect, but also conducive to the maintenance of good customs and social order, in line with the purpose of retribution. Man is a kind of penalty system which violates equality and justice. It not only can't deter, but also goes against the direction of social development, violates the purpose of education penalty and purpose penalty.
In addition to the introduction and conclusion, the article discusses the application of responsibility in judging the death penalty from three parts.
The first part is to summarize the relevant knowledge of accountability. Firstly, the author summarizes the impact of accountability from the connotation, elements, functions, resultant and behavioral axiology. Secondly, the author introduces the difference of accountability from a historical point of view. Finally, the embarrassing situation of accountability in China's criminal law system and the application of death penalty is discussed from three aspects: the status of accountability in the criminal law system, the basic principles clearly stipulated in the criminal law and the relationship with the discretion of death penalty.
The second part mainly discusses the relationship between the doctrine of responsibility and the criminal law system of our country.It discusses the relationship between the doctrine of responsibility and the basic principles of our criminal law,the relationship between the doctrine of responsibility and the criminal constitution system of our country,and the relationship between the doctrine of responsibility and the death penalty discretion of our country.
The third part: How to discuss the concrete application of the responsibility doctrine in the discretion of death penalty is the core of this article. It mainly includes the following aspects: intentional responsibility, the responsibility of fact cognition error, the responsibility of responsibility ability, the responsibility of aggravated crime as a result, the conviction plot in the responsibility elements and the sentencing plot outside the responsibility elements, totaling five circumstances. Parts are discussed separately.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
本文编号：2199775
[Abstract]:Criminal law of responsibility doctrine is the trend of contemporary criminal law.Penalty is based on responsibility and there is no penalty without responsibility.Therefore, responsibility doctrine is not only a viewpoint, but also a basic principle of criminal law. It controls the function of criminal law together with the principle of legality of crime and punishment and the principle of protection of legal interests. Only in this way can we realize the protection of legal interests and the prevention of crimes while punishing crimes. Death penalty is the most severe means of punishment in criminal law, and more importantly, we should carry out the responsibility doctrine, so as to achieve the policy requirements of "less killing" as the concept and "cautious killing" as the means.
In the middle of the 18th century, the famous Italian criminal jurist Cesare Beccaria put forward in his book On Crime and Penalty that "Extreme punishment should be executed indiscriminately". With the passage of time, especially after World War II, more and more countries began to advocate the abolition of the death penalty in criminal legislation. According to statistics, the Second International Covenant on Civil and Political Rights, adopted in 1989, aims to abolish the death penalty. By 2013, the Optional Protocol had been ratified by 76 countries; more than 150 countries had abolished or ceased to execute the death penalty. In 2012, 174 of the 193 member states of the United Nations did not execute the death penalty. For the death penalty does not violate the concept of correcting crime, is an equal and just penalty system, not only has a great deterrent effect, but also conducive to the maintenance of good customs and social order, in line with the purpose of retribution. Man is a kind of penalty system which violates equality and justice. It not only can't deter, but also goes against the direction of social development, violates the purpose of education penalty and purpose penalty.
In addition to the introduction and conclusion, the article discusses the application of responsibility in judging the death penalty from three parts.
The first part is to summarize the relevant knowledge of accountability. Firstly, the author summarizes the impact of accountability from the connotation, elements, functions, resultant and behavioral axiology. Secondly, the author introduces the difference of accountability from a historical point of view. Finally, the embarrassing situation of accountability in China's criminal law system and the application of death penalty is discussed from three aspects: the status of accountability in the criminal law system, the basic principles clearly stipulated in the criminal law and the relationship with the discretion of death penalty.
The second part mainly discusses the relationship between the doctrine of responsibility and the criminal law system of our country.It discusses the relationship between the doctrine of responsibility and the basic principles of our criminal law,the relationship between the doctrine of responsibility and the criminal constitution system of our country,and the relationship between the doctrine of responsibility and the death penalty discretion of our country.
The third part: How to discuss the concrete application of the responsibility doctrine in the discretion of death penalty is the core of this article. It mainly includes the following aspects: intentional responsibility, the responsibility of fact cognition error, the responsibility of responsibility ability, the responsibility of aggravated crime as a result, the conviction plot in the responsibility elements and the sentencing plot outside the responsibility elements, totaling five circumstances. Parts are discussed separately.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
【参考文献】
相关期刊论文 前3条
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本文编号：2199775
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