我国死刑罪名削减研究
发布时间：2018-10-23 19:24
【摘要】：当前,逐步废止死刑已经成为中国刑法理论界的共识,在这一共识下,如何规划死刑罪名削减的方案则成为当前中国刑法理论和实务界研究的重点、热点问题。文章采用了比较分析的方法,对中国死刑罪名及其适用条件进行了深入的研究,认为目前《刑法》中存在着死刑罪名数量多、分布范围广,多数死刑犯罪适用条件门槛低、死刑罪名配置彼此不协调等问题,应对其进行及时的规范、限制及废止。文章从死刑政策、死刑罪名削减的宏观构想及其具体展开三个方面系统论证了中国死刑罪名削减的路线安排。首先,政策对法律具有一定的指导作用,为了进一步削减死刑罪名并最终废除死刑,有必要革新现阶段的死刑政策,选择“限制并逐步废除死刑”作为我国的死刑政策。其次,理论界关于死刑罪名削减安排的主流观点(即根据死刑犯罪的是否有暴力性及暴力性程度)实为罪名性废止,不符合当前死刑罪名进一步削减的改革需求。文章结合死刑罪名规定的特点、死刑适用标准及死刑罪名削减的原则,提出死刑罪名削减新的理论构想,其主要特点为:一是将限制死刑罪名适用条件作为当前死刑罪名削减的切入点和阶段之一;二是纵向地看,将我国死刑罪名的削减分为三个阶段,至2100年完全废止死刑;三是横向地看,根据具体死刑罪名的特点将削减分为两条线,一条为一般死刑罪名的削减,主要根据该死刑犯罪的社会危害性程度大小进行依次削减,另一条为具有国情民意阻力死刑罪名的削减,该罪名的削减需要结合社会危害性和国情民意等因素综合考量;最后,文章展开分析了我国死刑罪名削减的构想:第一阶段应规范我国死刑罪名具体适用条件,通过立法技术转化技术性削减死刑罪名,同时取消绝对死刑配置方式。第二阶段根据“罪行极其严重”的死刑适用标准,仅保留故意杀人罪、武装叛乱、暴乱罪的死刑罪名。第三阶段将故意杀人罪、武装叛乱、暴乱罪的死刑配置取消,并且在宪法中明确我国废除死刑,届时我国将彻底废除死刑。
[Abstract]:At present, gradually abolishing the death penalty has become the consensus of the Chinese criminal law theorists. Under this consensus, how to plan the plan for the reduction of the death penalty charges has become the focus and hot issue of the current study of the theory and practice of Chinese criminal law. The article adopts the method of comparative analysis, carries on the thorough research to the death penalty charge and its applicable condition in China, thinks that there are many death penalty charges in the present Criminal Law, the scope of distribution is wide, and the threshold of most death penalty crimes is low. It is necessary to regulate, restrict and abolish the allocation of death penalty charges in a timely manner. This paper systematically demonstrates the route arrangement of death penalty crime reduction in China from three aspects: death penalty policy, macro conception of death penalty crime reduction and its concrete development. First of all, the policy has certain guiding function to the law. In order to further reduce the death penalty charges and abolish the death penalty finally, it is necessary to reform the present death penalty policy and choose "limit and gradually abolish the death penalty" as our country's death penalty policy. Secondly, the mainstream view of the reduction of death penalty charges (that is, according to whether the death penalty crime is violent or not) is actually abolished, which is not in line with the current reform needs of further reduction of death penalty charges. Based on the characteristics of death penalty charges, the applicable standards of death penalty and the principle of reducing death penalty charges, this paper puts forward a new theoretical conception of capital punishment crime reduction. Its main features are as follows: first, the limitation of the conditions of application of death penalty charges as one of the entry points and stages of the current reduction of death penalty charges; second, vertically, the reduction of death penalty charges in China is divided into three stages, and the death penalty will be abolished completely by 2100. Third, horizontally, according to the characteristics of the specific death penalty charges, the cuts are divided into two lines. One is the reduction of the ordinary death penalty charges, mainly based on the degree of social harm of the death penalty crimes. The other is the reduction of the death penalty charge, which has national public opinion resistance, which needs to be comprehensively considered in the light of factors such as social harmfulness and national public opinion. Finally, This paper analyzes the conception of the reduction of death penalty charges in our country: in the first stage, we should standardize the specific applicable conditions of the death penalty charges in our country, change the technical reduction of the death penalty charges through the legislative technology, and at the same time abolish the absolute allocation of the death penalty. In the second stage, the death penalty for intentional homicide, armed insurrection and riot is reserved according to the applicable criteria of "extremely serious crime". In the third stage, the death penalty for intentional homicide, armed rebellion and riot will be abolished, and it is clear in the Constitution that the death penalty will be abolished in our country.
【学位授予单位】：山东科技大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2290242
[Abstract]:At present, gradually abolishing the death penalty has become the consensus of the Chinese criminal law theorists. Under this consensus, how to plan the plan for the reduction of the death penalty charges has become the focus and hot issue of the current study of the theory and practice of Chinese criminal law. The article adopts the method of comparative analysis, carries on the thorough research to the death penalty charge and its applicable condition in China, thinks that there are many death penalty charges in the present Criminal Law, the scope of distribution is wide, and the threshold of most death penalty crimes is low. It is necessary to regulate, restrict and abolish the allocation of death penalty charges in a timely manner. This paper systematically demonstrates the route arrangement of death penalty crime reduction in China from three aspects: death penalty policy, macro conception of death penalty crime reduction and its concrete development. First of all, the policy has certain guiding function to the law. In order to further reduce the death penalty charges and abolish the death penalty finally, it is necessary to reform the present death penalty policy and choose "limit and gradually abolish the death penalty" as our country's death penalty policy. Secondly, the mainstream view of the reduction of death penalty charges (that is, according to whether the death penalty crime is violent or not) is actually abolished, which is not in line with the current reform needs of further reduction of death penalty charges. Based on the characteristics of death penalty charges, the applicable standards of death penalty and the principle of reducing death penalty charges, this paper puts forward a new theoretical conception of capital punishment crime reduction. Its main features are as follows: first, the limitation of the conditions of application of death penalty charges as one of the entry points and stages of the current reduction of death penalty charges; second, vertically, the reduction of death penalty charges in China is divided into three stages, and the death penalty will be abolished completely by 2100. Third, horizontally, according to the characteristics of the specific death penalty charges, the cuts are divided into two lines. One is the reduction of the ordinary death penalty charges, mainly based on the degree of social harm of the death penalty crimes. The other is the reduction of the death penalty charge, which has national public opinion resistance, which needs to be comprehensively considered in the light of factors such as social harmfulness and national public opinion. Finally, This paper analyzes the conception of the reduction of death penalty charges in our country: in the first stage, we should standardize the specific applicable conditions of the death penalty charges in our country, change the technical reduction of the death penalty charges through the legislative technology, and at the same time abolish the absolute allocation of the death penalty. In the second stage, the death penalty for intentional homicide, armed insurrection and riot is reserved according to the applicable criteria of "extremely serious crime". In the third stage, the death penalty for intentional homicide, armed rebellion and riot will be abolished, and it is clear in the Constitution that the death penalty will be abolished in our country.
【学位授予单位】：山东科技大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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