我国自由刑执行体系完善研究
发布时间：2019-06-20 07:40
【摘要】：刑罚的执行是刑事法律运行中的重要一环,其执行的效果也对刑事立法及司法产生重要影响。刑罚的目的在经历了由报应刑到教育刑的发展之后,更加注重的是如何通过刑罚的执行这个环节来改造、教育犯罪人,逐步降低其人身危险性,并使其在经过改造之后能够再次融入社会。总的来说,我国现有的自由刑的执行体系缺乏必要的过渡阶段。犯罪人在刑罚执行完毕以后直接从封闭的监狱被释放到完全自由的社会中去,没有一个逐步适应社会的过程,这往往容易使犯罪人因不能够融入社会而选择再次实施犯罪行为。本文主张建立梯度式的自由刑执行体系,自由刑的执行遵循一种由重到轻的过程,使犯罪人由被剥夺自由的状态到限制自由,直至最后完全自由的融入社会的一种状态。这种执行效果完全符合人类的感觉体验,能够使犯罪人在经过刑罚的执行之后,不致与社会发生脱节,从而实现其再社会化的目的。通过建立梯度式的自由刑执行体系,扩大假释制度的适用范围,在自由刑执行的最后阶段普遍实行的是假释制度,作为监禁与自由状态的过渡阶段,并根据犯罪分子的犯罪行为的严重程度以及改造表现来确定假释的适用时间及期限。一方面能够使犯罪人逐步恢复自由,争取早日回归社会;另一方面对犯罪人进行监督考察,如果犯罪人在假释考验期内不遵守监管规定,或者实施新的犯罪行为的,则保留有继续将其关押的可能,有效实现了刑法保障人权与预防犯罪的双重目的。刑罚轻缓化已是世界刑法发展的一种趋势,刑罚执行的开放化、社会化是其必然要求,因此,我国有必要实行一些开放化的刑罚处遇制度。通过完善监狱的分级处遇制度,将罪刑轻重不同的犯罪人实行分级分类关押,同时犯罪人经过改造以后可以从重刑监狱逐步过渡到轻刑监狱,使其监禁环境能够得到逐步的改善,为其重返社会创造条件。增加"可以"撤销假释的规定,赋予法官一定的自由裁量权,对于在考验期内发现犯罪人的漏罪、新罪以及违反监管规定的情况,根据行为的性质与危害程度来作出是否撤销假释的决定。犯罪人的漏罪与再犯的新罪两者所表现出来的行为人的人身危险性是不同的,如果犯罪人在考验期内能够认真遵守规定,积极进行改造,就足以表明其人身危险性的降低。因此,即使发现了漏罪也不能完全无视犯罪人在考验期间的改造表现而一概予以否定。我国《刑法修正案(九)》中对于有期徒刑和拘役的并罚,采取的是吸收原则,即数罪中有被判处有期徒刑和拘役的,执行有期徒刑,拘役不再执行。对于在考验期内发现犯罪人的漏罪应被判处拘役的(漏罪没有超过追溯时效),即使撤销假释也不会对原来的刑罚造成影响,因此,可以考虑通过延长假释考验期的方式来对漏罪进行处罚,而不是一律撤销假释。同时加强社区矫正内容的完善,随着行刑社会化的不断发展,社区矫正的作用正在逐步凸显,我国对于被判处管制、宣告缓刑和假释的犯罪人依法实行社区矫正,但现实中矫正的效果却不太理想。健全基层社区矫正的组织机构、人员构成、矫正内容,通过设立专门的矫正机构,为犯罪人的矫正奠定基础,积极吸纳社会上的一些教育工作者、社会工作者、高校毕业生等进入矫正机构,充实社区矫正的人才队伍,为犯罪人提供更加多元化的帮教救助活动。同时对于犯罪人在矫正期间的监督约束内容应由繁到简逐渐宽松下来,以有利于犯罪人适应正常的社会生活,实现再社会化的目的。
[Abstract]:The execution of the penalty is an important part of the criminal law operation, and the effect of the execution also has an important effect on the criminal legislation and the administration of justice. The purpose of the penalty is to reform and educate the criminals through the implementation of the penalty, and to gradually reduce their personal risk through the implementation of the penalty, and to make it be reintegrated into the society after the reform. In general, the existing system of free-punishment in our country lacks the necessary transitional phase. After the execution of the penalty, the offender is released from the closed prison directly into the completely free society, and there is no process of gradually adapting to the society, which tends to make the perpetrator choose to commit the crime again because of being unable to be integrated into the society. In this paper, a gradient type of free-punishment execution system is established, and the execution of the free penalty follows a process of heavy-to-light, so that the offenders are deprived of their liberty to a state where they are deprived of their liberty until the final and complete freedom is integrated into a state of society. The effect of this kind of execution is in full conformity with the human's feeling experience, and can make the criminals not be separated from the society after the execution of the punishment, so as to realize the purpose of re-socialization. through the establishment of a gradient free execution system, the application scope of the parole system is expanded, the parole system is generally implemented at the final stage of the execution of the free punishment, And to determine the applicable time and duration of the parole according to the severity of the crime of the criminal and the performance of the modification. On the one hand, it is possible to gradually restore the offender to the right to return to the society at an early date, and, on the other hand, to supervise and inspect the perpetrator, and if the offender fails to comply with the regulatory requirements during the probation period or to implement a new criminal act, the possibility of continuing its detention will be retained, And the dual purpose of the criminal law to guarantee human rights and crime prevention is effectively realized. The light of punishment is a trend of the development of the world criminal law. The opening and socialization of the execution of the penalty are the inevitable requirements. Therefore, it is necessary for our country to apply some open-ended punishment. Through the improvement of the system of the classification of the prison, the perpetrators of different crimes and punishments are classified and detained at the same time, and the offenders can be gradually transferred from the heavy-punishment prison to the light-punishment prison after the transformation, so that the prison environment can be gradually improved, and the conditions for the reintegration of the offenders can be created. The increase in the provision of "revocation of parole" gives the judge a discretionary power to decide whether to revoke the decision on parole based on the nature of the act and the extent of the harm, in the case of the discovery of the crime of the offender, the new crime and the violation of the regulatory requirements during the test period. The personal risk of the perpetrators of the crime of the crime of the offender and the new crime of the non-recurrence is different, and if the offender is able to observe the regulations in earnest during the test period, it is sufficient to show that the person's personal risk is reduced. Therefore, even if it is found that the crime of omission is not completely ignored by the offender during the test period. The Criminal Law Amendment (9)> shall be sentenced to fixed-term imprisonment and criminal detention and shall be sentenced to fixed-term imprisonment and criminal detention, and shall be sentenced to fixed-term imprisonment of not more than criminal detention and criminal detention. The omission of the offender during the test period shall be sentenced to criminal detention (the omission does not exceed the retroactive effect), and even if the release of the parole does not have an impact on the original penalty, it is possible to consider the punishment of the crime of omission by extending the probation period of the parole, And not all of them are to be released on parole. At the same time, the improvement of the content of the community correction is strengthened. With the development of the socialization of the execution and punishment, the role of community correction is becoming more and more prominent. (a) To improve the organizational structure, composition and correction of the base-level community correction, and to lay the foundation for the rectification of the offenders through the establishment of specialized correction institutions, and to actively absorb some of the educational workers, social workers and university graduates in the society to enter the correction mechanism, To enrich the team of the community correction, to provide more diversified assistance and rescue activities for the offenders. At the same time, the content of the supervision and restriction of the offenders during the correction should be gradually loosened from the traditional to the simple, so as to help the criminals to adapt to the normal social life and realize the purpose of re-socialization.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1
本文编号：2503049
[Abstract]:The execution of the penalty is an important part of the criminal law operation, and the effect of the execution also has an important effect on the criminal legislation and the administration of justice. The purpose of the penalty is to reform and educate the criminals through the implementation of the penalty, and to gradually reduce their personal risk through the implementation of the penalty, and to make it be reintegrated into the society after the reform. In general, the existing system of free-punishment in our country lacks the necessary transitional phase. After the execution of the penalty, the offender is released from the closed prison directly into the completely free society, and there is no process of gradually adapting to the society, which tends to make the perpetrator choose to commit the crime again because of being unable to be integrated into the society. In this paper, a gradient type of free-punishment execution system is established, and the execution of the free penalty follows a process of heavy-to-light, so that the offenders are deprived of their liberty to a state where they are deprived of their liberty until the final and complete freedom is integrated into a state of society. The effect of this kind of execution is in full conformity with the human's feeling experience, and can make the criminals not be separated from the society after the execution of the punishment, so as to realize the purpose of re-socialization. through the establishment of a gradient free execution system, the application scope of the parole system is expanded, the parole system is generally implemented at the final stage of the execution of the free punishment, And to determine the applicable time and duration of the parole according to the severity of the crime of the criminal and the performance of the modification. On the one hand, it is possible to gradually restore the offender to the right to return to the society at an early date, and, on the other hand, to supervise and inspect the perpetrator, and if the offender fails to comply with the regulatory requirements during the probation period or to implement a new criminal act, the possibility of continuing its detention will be retained, And the dual purpose of the criminal law to guarantee human rights and crime prevention is effectively realized. The light of punishment is a trend of the development of the world criminal law. The opening and socialization of the execution of the penalty are the inevitable requirements. Therefore, it is necessary for our country to apply some open-ended punishment. Through the improvement of the system of the classification of the prison, the perpetrators of different crimes and punishments are classified and detained at the same time, and the offenders can be gradually transferred from the heavy-punishment prison to the light-punishment prison after the transformation, so that the prison environment can be gradually improved, and the conditions for the reintegration of the offenders can be created. The increase in the provision of "revocation of parole" gives the judge a discretionary power to decide whether to revoke the decision on parole based on the nature of the act and the extent of the harm, in the case of the discovery of the crime of the offender, the new crime and the violation of the regulatory requirements during the test period. The personal risk of the perpetrators of the crime of the crime of the offender and the new crime of the non-recurrence is different, and if the offender is able to observe the regulations in earnest during the test period, it is sufficient to show that the person's personal risk is reduced. Therefore, even if it is found that the crime of omission is not completely ignored by the offender during the test period. The Criminal Law Amendment (9)> shall be sentenced to fixed-term imprisonment and criminal detention and shall be sentenced to fixed-term imprisonment and criminal detention, and shall be sentenced to fixed-term imprisonment of not more than criminal detention and criminal detention. The omission of the offender during the test period shall be sentenced to criminal detention (the omission does not exceed the retroactive effect), and even if the release of the parole does not have an impact on the original penalty, it is possible to consider the punishment of the crime of omission by extending the probation period of the parole, And not all of them are to be released on parole. At the same time, the improvement of the content of the community correction is strengthened. With the development of the socialization of the execution and punishment, the role of community correction is becoming more and more prominent. (a) To improve the organizational structure, composition and correction of the base-level community correction, and to lay the foundation for the rectification of the offenders through the establishment of specialized correction institutions, and to actively absorb some of the educational workers, social workers and university graduates in the society to enter the correction mechanism, To enrich the team of the community correction, to provide more diversified assistance and rescue activities for the offenders. At the same time, the content of the supervision and restriction of the offenders during the correction should be gradually loosened from the traditional to the simple, so as to help the criminals to adapt to the normal social life and realize the purpose of re-socialization.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1
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