国外终身监禁制度及其对我国制度完善的启示

发布时间：2018-11-09 08:32

【摘要】：我国《刑法修正案(九)》增设的重大贪污受贿犯罪死缓犯终身监禁制度,将反腐的新时代要求和对于贪污受贿犯罪慎用死刑的政策通过立法的手段将他们“融合”。终身监禁制度是我国刑法中的一种舶来品,最早是出现在著名刑法学家切萨雷·贝卡里亚的专著《论犯罪与刑罚》中,如今,世界上许多国家用终身监禁取代了死刑,在这些国家的刑法中最严厉的刑罚措施变成了终身监禁。这些国家的立法中,终身监禁制度按照不同的标准可以划分为不同类型,其中最普遍的类型划分是不可减刑、假释的终身监禁与可以减刑、假释的终身监禁。我国刑法中终身监禁制度的法律定位是一种特殊的刑罚执行制度,是部分死刑立即执行的替代性措施,还是刑罚严厉程度居于一般死缓与死刑立即执行之间的中间刑罚。我国终身监禁制度在适用时不仅要遵循“数额特别巨大,并使国家和人民利益遭受特别重大损失”的罪行条件,死刑缓期执行的宣告刑条件,还得遵循“从旧兼从轻”的时间效力原则。作为我国刑法中的新生制度,终身监禁制度还存在一些理论争议问题,如重大立功是否影响终身监禁的执行,终身监禁执行过程中是否适用暂予监外执行。我国立法机关引进终身监禁制度,看重的是该制度既能起到从严反腐的效果,也能在腐败犯罪领域减少死刑的适用,除此之外,设立终身监禁制度能够完善我国刑罚体系“死刑过重、生刑太轻”的缺陷,弥补刑罚执行过程中“刑期长,服刑短”的漏洞。诚然,我国刑法中的终身监禁制度还存在违背罪刑相适应原则、适用标准不明确、执行成本高等缺陷问题,但只要立法机关在充分借鉴国外有益经验和总结我国制度不足的基础上,从立法、司法两方面进行探索,必能获得对我国终身监禁制度的完善有所助益的启示,进而推动我国刑罚体系朝着更加轻缓化、经济化方向发展。
[Abstract]:The "Criminal Law Amendment (9)" has added the system of life imprisonment for the major embezzlement and bribery crime, which combines the requirements of the new era of anti-corruption and the policy of using the death penalty carefully for the crime of corruption and bribery by means of legislation. The system of life imprisonment is an import in our country's criminal law. It first appeared in Cesare Beccaria's monograph on Crime and penalty. Nowadays, life imprisonment has replaced the death penalty in many countries in the world. The harshest penalties in the criminal laws of these countries have been converted into life imprisonment. In the legislation of these countries, the system of life imprisonment can be divided into different types according to different standards, among which the most common type is non-commutation, parole of life imprisonment and commutation of life imprisonment, parole of life imprisonment. The legal orientation of the system of life imprisonment in the criminal law of our country is a special system of penalty execution, which is an alternative measure for the immediate execution of part of the death penalty, or the intermediate penalty of the severity of the penalty between the general suspension of death and the immediate execution of the death penalty. The system of life imprisonment in our country should not only be applied in accordance with the conditions of the crime of "exceptionally large amounts and inflicting particularly heavy losses on the interests of the State and the people", and the conditions for the suspension of the execution of the death penalty, We must also follow the principle of "from the old and from the lighter" principle of time effectiveness. As a new system in the criminal law of our country, there are still some theoretical controversies in the system of life imprisonment, such as whether great meritorious service affects the execution of life imprisonment, and whether it is suitable for execution outside prison temporarily in the course of execution of life imprisonment. The legislature of our country introduces the system of life imprisonment, what it values is that the system can not only have the effect of strict anti-corruption, but also reduce the application of death penalty in the field of corruption crimes. In addition, Setting up the system of life imprisonment can perfect the penalty system of our country, that is, the death penalty is too heavy and the birth penalty is too light, and make up the loophole of "long term, short sentence" in the course of penalty execution. It is true that the system of life imprisonment in the criminal law of our country still has some defects, such as violating the principle of adaptation of crime and punishment, the applicable standard is not clear, the cost of execution is high, and so on. However, as long as the legislature, on the basis of drawing lessons from foreign beneficial experience and summing up the insufficiency of our country's system, and exploring from the two aspects of legislation and judicature, it will be able to obtain some helpful enlightenment to the perfection of the system of life imprisonment in our country. Furthermore, the penalty system of our country will develop more gently and economically.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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