我国毒品犯罪死刑限制适用问题研究

发布时间：2019-05-27 20:45

【摘要】：毒品犯罪一直是世界各国普遍关注的严重犯罪,毒品犯罪的严打不绝已成为仅次于恐怖活动、艾滋的世界公害之一,为打击毒品犯罪和适应现代法治发展要求,各国都很重视毒品犯罪的刑事立法,形成各具特色的严惩模式。二十世纪七十年代末,我国首次在立法上设置制造、运输、贩卖毒品罪,鉴于七八十年代的毒品犯罪在我国并不严重,只是偶尔的个案发生,没有必要以重刑规制,所以法律上对毒品犯罪设置最高刑罚只是有期徒刑。进入80年代后,随着改革开放的潮流和社会经济的发展,毒品慢慢渗透国内,愈演愈烈,已严重威胁到社会安定和经济秩序,先前的毒品犯罪刑罚已不足以保障国家安全和民生,因此考虑到毒品犯罪的严重态势,80年代后国家对关于毒品犯罪的刑事法律不断进行改进修正,1982年的《关于严惩严重破坏经济的罪犯的决定》首次对毒品犯罪中的贩卖毒品罪规定了死刑,这是我国第一次在法律上对毒品犯罪设置了死刑,时隔六年后的《关于惩治走私罪的补充规定》又对走私毒品罪规定了死刑,直至1997年新刑法根据当时我国禁毒中出现的新问题,统一完善了毒品犯罪类型,规定走私、制造、运输、贩卖毒品罪罪行严重的最高刑罚可至死刑,至此中国也变成了其中一个毒品犯罪死刑执行率高的国家。2005年,随着“宽严相济”司法指导思想出现和世界死刑制度改革的开展,死刑问题逐渐引起社会关注,目前非暴力犯罪的死刑改革较之于暴力犯罪更易,因为不涉及有人身暴力伤害,更不存在“以命抵命”的报应观。而在现实司法操作里,对毒品犯罪判处死刑的案件数量在非暴力犯罪死刑案件中占的百分比是名列前茅的,毒品犯罪刑事立法的缺失瑕疵和国家政策的影响导致了实践中在刑罚适用上对毒品犯罪的打击出现罪责刑不均衡问题。基于我国目前毒品犯罪的严重形势和死刑适用高比例现状,探讨研究我国立法上关于毒品犯罪死刑适用规定和司法上如何限制死刑适用的问题是十分必要的。本文对国内毒品犯罪这十年来变化走势和国内外关于此犯罪的法律刑罚规定进行了描述比较,反思我国惩治毒品犯罪的严打思想,指出我国司法审判中在对毒品犯罪被告人处以死刑时法律适用几点不足及影响毒品犯罪死刑限制适用的障碍,并提出了几点对应的法律修正路径,希望能够为丰富和发展毒品犯罪死刑限制问题研究添砖加瓦。本文将内容分成四大点逐一分析。第一部分是我国毒品犯罪概述,该部分介绍的是我国近十年来毒品犯罪的发展趋势和构成特点,国外对毒品犯罪刑罚规定的比较考察和我国毒品犯罪刑事立法演变及刑罚适用原则,意在通过与国外毒品犯罪法律规制和死刑适用的比较,指出我国限制毒品犯罪死刑适用是顺应世界法治的发展潮流,并非空穴来风,为毒品犯罪死刑限制找出理论依据和现实依据。第二部分是分析及反思我国毒品犯罪的“严打”刑事政策、阐述应当限制毒品犯罪死刑适用的四个理论依据及在限制毒品犯罪死刑适用实施中的障碍,分别是：文化障碍,重刑主义观及鸦片历史影响；观念障碍,民众对毒品犯罪的认识偏差；现实障碍,严峻的犯罪形势及毒品泛滥；法律障碍,司法实践对毒品犯罪死刑标准量化单一。第三部分是指出我国毒品犯罪死刑适用存在的问题,包括数量标准、纯度折算、量刑情节要综合考虑及法律上对运输毒品罪刑罚过重,新型毒品立法迷糊等,这些因素都会影响到毒品犯罪的量刑轻重及刑罚是否失当。司法实践中毒品犯罪死刑适用量相对较多,这与国际政策和国内人权保障、死刑改革不符,我们应该认识到毒品犯罪的死刑适用标准需要适当改进。第四部分是提出限制毒品犯罪死刑适用的可行路径,笔者基于当下我国毒品犯罪死刑的实际形势,建议从立法和司法两方面入手改革,立法方面主要是限制及逐步废除运输毒品罪的死刑；对新型毒品类型加快完善立法,慎用死刑；对不同毒品种类的法定刑额度应作区分。司法限制主要是适当扩大死缓及财产型适用；改变“唯数论”的裁量标准；严格把握从轻、减轻量刑情节。
[Abstract]:The drug-related crime has been a serious crime of the world's universal concern, and the drug-related crime has become one of the world public hazards only after the terrorist activities and AIDS. In order to fight the drug crime and adapt to the development of the modern rule of law, all countries attach great importance to the criminal legislation of the drug-related crime. The pattern of severe punishment of each characteristic is formed. In the end of the 1970s, the first time in our country to set up the crime of manufacturing, transportation and drug trafficking, in view of the fact that the drug-related crime in the 1970s was not serious in our country, it was only an occasional case, and there was no need to regulate the crime. So the maximum penalty for drug-related crime is to be sentenced to fixed-term imprisonment. After the 80 's, with the tide of the reform and opening-up and the development of the social economy, the drug's slow penetration into the country has become more and more intense, and it has seriously threatened the social stability and economic order, and the previous drug-related criminal penalty has not been enough to guarantee the national security and the people's livelihood. Taking into account the serious situation of the drug-related crime, the State's continued improvement in the criminal law on drug-related crime in the post-1980s, the 1982 decision on the severe punishment of the perpetrators of serious damage to the economy, the first sentence of the death penalty for drug-trafficking in drug-related crimes, This is the first time in our country that the death penalty has been set up in the law, the supplementary provisions on the punishment of the smuggling of drugs six years later, and the imposition of the death penalty on the crime of smuggling drugs, until the new criminal law in 1997, on the basis of the new problems in our country's counter-narcotics, has united and improved the drug-crime type, In 2005, with the development of the guiding ideology of the "to be in a tight and tight manner" and the reform of the world capital punishment system, The question of the death penalty has gradually attracted the attention of the international community. At present, the reform of the death penalty for non-violent crime is more than that of violent crime, because it is not related to personal violence, and there is no more "to live with one's life" of recompense. In real-life justice operations, the number of cases where the death penalty for drug-related crimes is the highest percentage of non-violent crime cases, The imperfection of the drug-related criminal legislation and the impact of the national policy have led to the application of the penalty to the problem of the non-equilibrium of the crime of drug-related crime in practice. It is necessary to study the application of the application of the death penalty and how to restrict the application of the death penalty on the basis of the current serious situation of the drug crime and the application of the high proportion of the death penalty in our country. This paper makes a description of the change trend of the drug-related crime in China and the provisions of the law on the crime at home and abroad, and reflect on the serious thought of the drug-related crime in our country. It is pointed out that there are several obstacles to the application of the law in the judicial trial of the drug-related crime in the case of the death penalty for the drug-crime defendant and the limitation of the application of the limitation on the death penalty of the drug-related crime, and several corresponding legal correction paths are put forward. It is hoped that the study of the issue of the limitation of the death penalty for drug-related crimes can be added. In this paper, the content is divided into four points one by one. The first part is an overview of the drug crime in our country. This part introduces the development trend and composition of the drug crime in the last ten years of our country. The aim of this paper is to point out that the application of the death penalty for drug-related crimes in China is the trend of the development of the rule of law in the world through the comparison with the legal regulation of drug-related crime and the application of the death penalty. The second part is to analyze and reflect on the "to strike hard" criminal policy of the drug crime in our country, and the four theoretical basis to limit the application of the drug-crime death penalty and the obstacles to the application of the application of the drug-related crime are discussed. The limitation of the concept, the public's understanding of the drug crime, the real obstacle, the serious crime situation and the drug spread, the legal obstacle, the judicial practice to the drug-crime capital punishment standard quantitative single. The third part is to point out the problems existing in the application of the drug-related crime in our country, including the standard of quantity, the conversion of the purity, the comprehensive consideration of the circumstances of the sentencing, the overweight of the drug-transporting drugs, the new type of drug legislation and the like, These factors can affect the severity of the drug-related crime and whether the penalty is lost. The application of the death penalty in the practice of justice is relatively large, which is not in line with international policy and domestic human rights guarantees and the reform of the death penalty, and we should recognize that the applicable standards of the death penalty for drug-related crimes need to be properly improved. The fourth part is to put forward the feasible path to limit the application of the drug-related crime, and based on the actual situation of the drug-crime death penalty in our country, the author suggests that the reform of the legislation and the administration of justice is the main limitation and the gradual abolition of the death penalty of the drug-related crime; The new type of drug type is accelerated to perfect the legislation, and the death penalty should be used with caution; the legal penalty line for different drug types should be distinguished. The judicial limitation is mainly due to the proper expansion of the application of the death and the property type; the standard of discretion in the change of the number theory; the strict control of the light and the mitigating circumstances.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924

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