我国单位犯罪的刑罚制度研究

发布时间：2019-06-07 18:31

【摘要】：随着我国社会结构的不断调整以及社会资源的再次分配,我国单位犯罪在日益复杂的社会现状下,无论是在广度上还是深度上都呈现出迅猛态势。为了切实解决现实中各种社会问题,有效惩治单位犯罪,我国在1997年刑罚中,全面承认了单位犯罪,采取了总分则相结合的方式对其进行了阐述,这较1979年刑法而言是有长足进步的。但我国目前虽已经明确规定了单位犯罪,但在刑罚的设置上仍是以自然人犯罪为基础的,在刑罚适用上也只能参照自然人犯罪的相关规定,这势必造成单位犯罪刑罚适用中诸多疑难与困惑。为了答疑解惑,进一步探讨单位犯罪,本文以我国单位犯罪刑罚制度为研究主题,提出自己的一些观点见解,力求进一步剖析单位犯罪。虽然我们全面规定单位犯罪的时间并没有大多西方国家长久,但在刑法理论界,关于单位犯罪的探讨却一直居高不下。世界各国均对单位犯罪及其有关的理论界定、处罚依据、适用原则,形成了诸多认识与学派。单就单位犯罪的刑事处罚理论而言,就有十多种之多,本文着重就其中的替代论、双层论等代表性的学说展开论述,通过分析每种理论学说存在的优缺点,本文倾向于刑事责任双层论。作为一个社会组织,单位有着明显区别于自然人的特殊属性,专为其设立的惩治方式,必然与自然人不同。在单位犯罪刑罚适用原则的介绍上,本文介绍刑法理论及实践中存在的三种刑事处罚立法模式的理论基础及其优缺点,同时论证我国应当改革现有处罚模式的应然性与可行性,明确区分单罚与双罚的优缺点,寻找最适合我国国情与先进阶段发展的适用模式。在罪责刑相一致原则的审视下,我国现有的规制单位犯罪的刑种设置显然不合时宜——"孤单"的罚金刑让制裁单位犯罪变得捉襟见肘。在单位犯罪的财产刑方面,我国现有的规定在具体数额方面并不明确,执行起来存在困难,同时不能对单位起到较好的警戒作用。或许是我国1997年刑法在设置之初,尚无法妥善考虑单位犯罪的适用问题,也就未能打造为单位犯人"量身定做"的刑罚体系。完善财产刑、增设资格刑、健全配套制度,本文将重点从以上角度,结合我国的实际情况,吸收国外先进的立法经验,就重构我国单位犯罪刑罚制度提出合理化建议。
[Abstract]:With the continuous adjustment of the social structure and the redistribution of social resources, the unit crime in our country shows a rapid trend in terms of breadth and depth under the increasingly complex social situation. In order to solve all kinds of social problems in reality and effectively punish unit crime, our country fully recognized unit crime in the penalty of 1997, and expounded it by combining the total score with the total score. This is a great progress compared with the 1979 criminal law. However, although the unit crime has been clearly stipulated in our country at present, the establishment of penalty is still based on the crime of natural person, and the application of penalty can only refer to the relevant provisions of natural person crime. This is bound to cause many difficulties and perplexities in the application of unit crime penalty. In order to answer questions and further explore unit crime, this paper takes the penalty system of unit crime in our country as the research subject, puts forward some viewpoints and opinions, and tries to further analyze the unit crime. Although the time of unit crime is not long in most western countries, the discussion of unit crime has been high in the theoretical circle of criminal law. Many countries all over the world have formed many understandings and schools on the theoretical definition, punishment basis and applicable principles of unit crime and its related theories. As far as the criminal punishment theory of unit crime is concerned, there are more than ten kinds of criminal punishment theory. this paper focuses on the representative theories such as substitution theory and double layer theory, and analyzes the advantages and disadvantages of each theory. This paper tends to the bilevel theory of criminal responsibility. As a social organization, the unit has the special attribute which is obviously different from the natural person, and the punishment mode set up for it is bound to be different from that of the natural person. On the introduction of the applicable principle of unit crime penalty, this paper introduces the theoretical basis, advantages and disadvantages of the three legislative models of criminal punishment existing in the theory and practice of criminal law, and demonstrates the necessity and feasibility of reforming the existing punishment mode in our country. Clearly distinguish the advantages and disadvantages of single penalty and double penalty, and find the most suitable mode for the development of our country's national conditions and advanced stage. Under the examination of the principle of consistency of responsibility and punishment, it is obviously inappropriate to set up the types of punishment for regulating unit crime in our country-the "lonely" fine penalty makes the punishment unit crime become stretched. In the aspect of property punishment of unit crime, the existing provisions of our country are not clear in the specific amount, there are difficulties in implementation, and at the same time, it can not play a better role as a warning to the unit. Perhaps at the beginning of the establishment of the criminal law of our country in 1997, the application of unit crime could not be properly considered, and the penalty system of "tailor-made" for unit prisoners could not be built. Perfecting property punishment, adding qualification penalty and perfecting supporting system, this paper will focus on from the above point of view, combined with the actual situation of our country, absorb the advanced legislative experience of foreign countries, and put forward reasonable suggestions on reconstructing the penalty system of unit crime in our country.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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