漏罪若干问题研究
发布时间：2018-11-26 17:48
【摘要】：我国刑法典规定的数罪并罚包括判决宣告以前一人犯数罪的并罚、判决宣告后发现漏罪的并罚以及判决宣告后又犯新罪的并罚三种情形。在立法设计上，这三种数罪并罚的方式体现了立法机关惩戒犯罪宽严不同的态度。一般情况下，判决宣告以前一人犯数罪的处罚与判决宣告后发现漏罪的处罚，结果基本一致，对犯新罪的处罚要重于漏罪的处罚。 但是，社会是不断发展变化的，司法实务中新的问题、新的情况总是层出不穷，法律规范的稳定性与社会生活的多变性总是相矛盾的。笔者通过司法实践中两个真实案例的处理过程和结果，指出漏罪的认定及处罚存在的问题，即认定漏罪的发现时间和发现标准存在的问题；原判为无期徒刑或死刑缓期二年执行，执行期间发现漏罪，处罚存在的问题；同种漏罪处罚存在的问题；在假释考验期内发现漏罪，处罚存在的问题。通过对以上案例及问题的分析，可以发现对漏罪的认定，刑法条文规定上存在一定的漏洞，导致司法实践中漏罪的认定标准不统一，处罚结果多样，影响人民法院裁判的权威性和严肃性。目前司法实践中，对同种漏罪的处罚会出现罪责不符、量刑失衡现象。原判为无期徒刑或死刑缓期二年执行，执行期间发现漏罪，处罚时会出现对同一犯罪事实重复评价现象，刑罚表述失衡且刑罚执行不公。由于不加区分漏罪产生的原因，在假释考验期内发现犯罪分子以往供述的但未被司法机关认定的漏罪，因此而撤销假释，对犯罪分子的改造产生负面影响。以上三种情况的漏罪处罚，出现了与刑罚目的相违背的现象，有违罪刑法定原则和罪刑相适应原则。 通过分析及司法实践经验，笔者对完善漏罪认定提出如下建议，即将《刑法》第70条、第77条、第86条中的“判决宣告”修改为“判决生效”，以避免产生歧义和争议；将《刑法》第70条、第77条、第86条中规定的“发现”，通过司法解释的形式，确定公诉案件以检察机关决定提起公诉之时为漏罪的发现时间，自诉案件以人民法院对被告人的漏罪判决之日为漏罪的发现时间，实现漏罪发现标准与时间的统一，且便于司法部门操作执行。对完善漏罪的处罚，笔者通过历史、中外规定及观点的对比，认为对同种漏罪采用张明楷教授提出的“以并罚为原则，不并罚为例外”的方法，可以避免发生大量同种漏罪量刑失衡现象。对原判为死缓、无期徒刑的漏罪处罚，建议根据漏罪量刑的不同情况，采取不同的处理方式，以解决漏罪处罚刑罚表述失衡、重复评价，及漏罪处罚与犯新罪处罚相比，量刑失衡及宽严区别问题。针对漏罪产生原因，区分主动漏罪与被动漏罪，对因司法机关原因而非犯罪分子的原因产生的被动漏罪，，本着有利于实现刑罚目的及改造罪犯的原则，在处罚时区别对待。
[Abstract]:The combined punishment for several crimes stipulated in the Criminal Code of our country includes three kinds of cases: one person who committed a number of crimes before the sentence was pronounced, the concurrent punishment of the missing crime found after the judgment declaration and the concurrent punishment of the new crime committed after the judgment declaration. In the legislative design, the three ways of combining punishment reflect the different attitude of lenient and strict punishment of crime. In general, the punishment of several crimes committed by one person before the declaration of judgment is basically consistent with the punishment of omission found after the declaration of judgment, and the punishment for committing new crimes should be heavier than the punishment for missing crimes. However, the society is constantly developing and changing, new problems and new situations always emerge in judicial practice, and the stability of legal norms is always contradictory to the variety of social life. Through the processing process and result of two real cases in judicial practice, the author points out the problems existing in the identification and punishment of the missing crime, that is, the discovery time and the problem of the discovery standard of the cognizance of the missing crime; The original sentence is life imprisonment or death penalty suspended for two years, during the execution found omission, punishment problems; the same type of omission of punishment problems; in the probation period found omission, punishment problems. Through the analysis of the above cases and problems, we can find that there are some loopholes in the provisions of the criminal law, which leads to the disunity of the criteria of the identification of the missing crimes in the judicial practice, and the variety of punishment results. Influence the authority and seriousness of the people's court judgment. In the current judicial practice, the punishment of the same kind of omission crime will appear the inconsistency of the crime responsibility and the imbalance of sentencing. The original sentence is life imprisonment or death penalty suspended for two years, during the execution found omission, punishment will appear the same crime facts repeated evaluation phenomenon, the penalty expression is unbalanced and the execution of the penalty is unfair. Because of the reason of the omission of crime without distinction, in the probation period of parole, we found the omission of the crime that the criminal had previously confessed but was not recognized by the judicial organ, therefore, the revocation of parole has a negative impact on the reform of the criminal. In the three cases above, the punishment of omission appears the phenomenon of violating the purpose of punishment, violating the principle of legally prescribed punishment for a crime and the principle of adaptation to the punishment of a crime. Through the analysis and the judicial practice experience, the author puts forward the following suggestions to perfect the cognizance of the omission crime, that is, the "judgment proclamation" in Article 70, Article 77, Article 86 of the Criminal Law is amended to "the judgment takes effect", in order to avoid the ambiguity and dispute; The "discovery" provided for in articles 70, 77 and 86 of the Criminal Code shall, through judicial interpretation, determine the time of discovery of the missing crime in the case of public prosecution when the procuratorial organ decides to initiate the prosecution, In the private prosecution case, the day of the judgment of the people's court on the defendant's omission of the crime is taken as the time of discovery of the missing crime, which realizes the unification of the standard and time of the discovery of the missing crime, and is convenient for the judicial department to operate and execute. Through the comparison of history, Chinese and foreign regulations and viewpoints, the author thinks that the method of "taking concurrent punishment as the principle and not concurrently punishing as the exception" proposed by Professor Zhang Mingkai is adopted to perfect the punishment of omission crime. Can avoid a large number of misdemeanor penalty imbalance phenomenon. With regard to the punishment for the omission of the original sentence of suspended death and life imprisonment, it is suggested that according to the different circumstances of the punishment of the omission of the crime, different ways should be taken to deal with the imbalance in the expression of the penalty for the omission of the crime, the repeated evaluation, and the comparison between the penalty for the omission of the crime and the punishment for the new crime. The imbalance of sentencing and the problem of leniency and strictness. In view of the causes of leakage, the author distinguishes the active crime from the passive crime, and treats the passive omission of the crime because of the reasons of the judicial organs rather than the criminals, in accordance with the principle of achieving the purpose of punishment and reforming the criminals.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924
本文编号：2359216
[Abstract]:The combined punishment for several crimes stipulated in the Criminal Code of our country includes three kinds of cases: one person who committed a number of crimes before the sentence was pronounced, the concurrent punishment of the missing crime found after the judgment declaration and the concurrent punishment of the new crime committed after the judgment declaration. In the legislative design, the three ways of combining punishment reflect the different attitude of lenient and strict punishment of crime. In general, the punishment of several crimes committed by one person before the declaration of judgment is basically consistent with the punishment of omission found after the declaration of judgment, and the punishment for committing new crimes should be heavier than the punishment for missing crimes. However, the society is constantly developing and changing, new problems and new situations always emerge in judicial practice, and the stability of legal norms is always contradictory to the variety of social life. Through the processing process and result of two real cases in judicial practice, the author points out the problems existing in the identification and punishment of the missing crime, that is, the discovery time and the problem of the discovery standard of the cognizance of the missing crime; The original sentence is life imprisonment or death penalty suspended for two years, during the execution found omission, punishment problems; the same type of omission of punishment problems; in the probation period found omission, punishment problems. Through the analysis of the above cases and problems, we can find that there are some loopholes in the provisions of the criminal law, which leads to the disunity of the criteria of the identification of the missing crimes in the judicial practice, and the variety of punishment results. Influence the authority and seriousness of the people's court judgment. In the current judicial practice, the punishment of the same kind of omission crime will appear the inconsistency of the crime responsibility and the imbalance of sentencing. The original sentence is life imprisonment or death penalty suspended for two years, during the execution found omission, punishment will appear the same crime facts repeated evaluation phenomenon, the penalty expression is unbalanced and the execution of the penalty is unfair. Because of the reason of the omission of crime without distinction, in the probation period of parole, we found the omission of the crime that the criminal had previously confessed but was not recognized by the judicial organ, therefore, the revocation of parole has a negative impact on the reform of the criminal. In the three cases above, the punishment of omission appears the phenomenon of violating the purpose of punishment, violating the principle of legally prescribed punishment for a crime and the principle of adaptation to the punishment of a crime. Through the analysis and the judicial practice experience, the author puts forward the following suggestions to perfect the cognizance of the omission crime, that is, the "judgment proclamation" in Article 70, Article 77, Article 86 of the Criminal Law is amended to "the judgment takes effect", in order to avoid the ambiguity and dispute; The "discovery" provided for in articles 70, 77 and 86 of the Criminal Code shall, through judicial interpretation, determine the time of discovery of the missing crime in the case of public prosecution when the procuratorial organ decides to initiate the prosecution, In the private prosecution case, the day of the judgment of the people's court on the defendant's omission of the crime is taken as the time of discovery of the missing crime, which realizes the unification of the standard and time of the discovery of the missing crime, and is convenient for the judicial department to operate and execute. Through the comparison of history, Chinese and foreign regulations and viewpoints, the author thinks that the method of "taking concurrent punishment as the principle and not concurrently punishing as the exception" proposed by Professor Zhang Mingkai is adopted to perfect the punishment of omission crime. Can avoid a large number of misdemeanor penalty imbalance phenomenon. With regard to the punishment for the omission of the original sentence of suspended death and life imprisonment, it is suggested that according to the different circumstances of the punishment of the omission of the crime, different ways should be taken to deal with the imbalance in the expression of the penalty for the omission of the crime, the repeated evaluation, and the comparison between the penalty for the omission of the crime and the punishment for the new crime. The imbalance of sentencing and the problem of leniency and strictness. In view of the causes of leakage, the author distinguishes the active crime from the passive crime, and treats the passive omission of the crime because of the reasons of the judicial organs rather than the criminals, in accordance with the principle of achieving the purpose of punishment and reforming the criminals.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924
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