无刑罚的犯罪——体系化分析我国《刑法》第37条
发布时间：2019-04-22 14:07
【摘要】："入罪免刑"作为刑事法上的一种例外,在各国的规定中并不罕见,与德日刑法的规定、判例相比较,虽然我国由于在犯罪概念、刑事制度设置上的差异对德日刑法的相关规定而有所取舍,但本质上仍属于对刑罚的最终手段性的反思而阻却刑罚。我国的免予刑事处罚规定偏重于带有"可罚的违法性"特征,特别是我国《刑法》第37条所规定的"免予刑事处罚"的一般性条款,更是使所有"犯罪情节轻微"的犯罪"可以"免予刑事处罚。我国的免予刑事处罚的标准模糊,需要通过解释对"犯罪情节轻微"要件具体限定,将免予刑事处罚的判断放在量刑判断的一般原则和规则、刑罚目的的实现和刑罚制度的有序性之中,进而需要通过规范的评价将其理论根据从"可罚的违法"衍生到"可罚的责任"领域,从根本上明确免予刑事处罚该措施的实质立场。
[Abstract]:As an exception in criminal law, "exemption from conviction" is not uncommon in the regulations of various countries. Compared with the provisions and jurisprudence of German and Japanese criminal law, although the concept of crime in our country is due to the concept of crime, The difference in the setting of the criminal system makes some choices to the relevant provisions of the German-Japanese criminal law, but it still belongs to the reflection on the final segment of the penalty and the hindrance of the penalty in essence. The provision of exemption from criminal punishment in our country favours the feature of "punishable illegality", in particular the general provision of "exemption from criminal punishment" provided for in article 37 of the Criminal Code of our country, Moreover, all "minor" crimes "can be exempted from criminal punishment." In our country, the standard of exemption from criminal punishment is vague. It is necessary to put the judgment of exemption from criminal punishment in the general principles and rules of sentencing judgment by explaining the elements of "minor circumstances of crime" and putting the judgment of exemption from criminal punishment into the general principles and rules of sentencing judgment. In the realization of the purpose of penalty and the orderliness of penalty system, it is necessary to derive its theoretical basis from "punishable violation" to "punishable responsibility" field through normative evaluation. Fundamentally, it is clear that the substantive position of the measure is to be exempted from criminal punishment.
【作者单位】： 京都大学;
【基金】：科学研究费助成事业(特别研究员奖励费)“量刑娭の再i藍嗓藭ⅳ工雐 ，
本文编号：2462904
[Abstract]:As an exception in criminal law, "exemption from conviction" is not uncommon in the regulations of various countries. Compared with the provisions and jurisprudence of German and Japanese criminal law, although the concept of crime in our country is due to the concept of crime, The difference in the setting of the criminal system makes some choices to the relevant provisions of the German-Japanese criminal law, but it still belongs to the reflection on the final segment of the penalty and the hindrance of the penalty in essence. The provision of exemption from criminal punishment in our country favours the feature of "punishable illegality", in particular the general provision of "exemption from criminal punishment" provided for in article 37 of the Criminal Code of our country, Moreover, all "minor" crimes "can be exempted from criminal punishment." In our country, the standard of exemption from criminal punishment is vague. It is necessary to put the judgment of exemption from criminal punishment in the general principles and rules of sentencing judgment by explaining the elements of "minor circumstances of crime" and putting the judgment of exemption from criminal punishment into the general principles and rules of sentencing judgment. In the realization of the purpose of penalty and the orderliness of penalty system, it is necessary to derive its theoretical basis from "punishable violation" to "punishable responsibility" field through normative evaluation. Fundamentally, it is clear that the substantive position of the measure is to be exempted from criminal punishment.
【作者单位】： 京都大学;
【基金】：科学研究费助成事业(特别研究员奖励费)“量刑娭の再i藍嗓藭ⅳ工雐 ，
本文编号：2462904
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