我国假释撤销制度研究

发布时间：2019-07-03 13:06

【摘要】：我国刑法关于假释撤销条件的规定,没有具体区分新罪是故意犯罪还是过失犯罪、漏罪发生的时间以及是严重违法违规还是轻微违法违规,对撤销条件的规定过于严格。刑法也没有对假释撤销“法定程序”的具体内容作出明假确的规定,其他的刑事程序法也没有关于撤销程序具体内容的规定,而且对于再审中的假释撤销问题也很少涉及。因此,需要对我国的假释撤销制度进一步的研究。本文共五个部分,约35000字。第一部分,我国假释撤销的依据。首先,假释撤销符合假释的本质,分别从假释恩惠说、假释权利说、假释刑罚执行说、假释刑罚形态说的角度,分析了撤销假释与假释的本质是一致的。其次,假释撤销也有利于假释功能的发挥,撤销假释既是对罪犯的一种惩罚也是对其他被假释人的一种警示。再次,对于没有彻底悔改的被假释人,撤销假释对于教育、改造罪犯和预防犯罪具有重要的意义,符合刑罚的目的。然后,又从法律上论述了我国假释撤销的正当性。首先,我国刑法有关于假释撤销的规定,对不符合相关规定的被假释人,我国司法机关有权对其撤销假释。再次,假释撤销与我国“宽严相济”的刑事政策相适应,对于没有改造好的假释犯撤销假释正是“严”的体现。第二部分,我国假释撤销条件的考察。首先,应该具体区分罪犯所犯新罪的主观罪过,如果罪犯在考验期间故意犯罪应该撤销假释,过失犯罪的不应该撤销假释。新罪是自诉案件的,应该考虑自诉案件是故意犯罪还是过失犯罪,如果自诉案件是故意犯罪,不管自诉人有没有告诉都应该对罪犯撤销假释,如果自诉案件是过失犯罪的不应该撤销假释。其次,在考验期间发现罪犯有漏罪的,不应该撤销假释。最后,罪犯仅仅是轻微违法违规时不应该撤销假释,只有罪犯严重违法违规的才应该撤销假释。第三部分,我国审判监督程序中的假释撤销问题考察。假释考验期满以后,假释已经消灭,原有判决再审改判的不应该撤销假释,建议对正当但有误的假释裁定不应该进行重新审理,有利于保障被假释人既定的权益和实现程序公正。第四部分,我国假释撤销后的期限折抵问题考察。假释被撤销以后,先前经过的考察时间不应该折抵刑期,但在考验期间已经执行的附加剥夺政治权利期限应仍然有效。第五部分,我国假释撤销程序的考察。下级法院撤销上级法院作出的假释裁定不合理,允许对法院做出撤销的裁定可以上诉,以协调刑事诉讼法中的审级问题,大多数被假释人违法、违规行为的发生地和原假释裁定的法院所在地并不一致,容易增加办理案件的难度。对于此种情形,建议对由考察机关所在地的基层人民法院管辖,管辖新罪的法院撤销原裁判法院做出的假释裁定缺乏告知程序,建议管辖新罪的法院撤销假释前应向告知原裁判法院,撤销假释后应向原裁判法院备案。
[Abstract]:The provisions of the criminal law of our country on the conditions for the withdrawal of parole do not distinguish whether the new crime is intentional crime or negligence crime, the time when the missed crime occurs and whether it is a serious violation of the law or a minor violation of the law, and the provisions on the conditions of withdrawal are too strict. The criminal law also does not make explicit provisions on the specific content of the "legal procedure" of parole withdrawal, other criminal procedure laws also do not have provisions on the specific contents of the withdrawal procedure, and the issue of parole withdrawal in retrial is rarely involved. Therefore, it is necessary to further study the parole withdrawal system in our country. There are five parts of this article, about 35000 words. The first part is the basis of parole withdrawal in our country. First of all, parole withdrawal accords with the essence of parole. From the point of view of parole grace theory, parole right theory, parole penalty execution theory and parole penalty form theory, this paper analyzes that the essence of parole withdrawal and parole is consistent. Secondly, parole cancellation is also conducive to the play of parole function, the abolition of parole is not only a punishment for criminals, but also a warning to other parolees. Thirdly, for parolees who have not completely repented, the abolition of parole is of great significance to education, reform of criminals and crime prevention, and is in line with the purpose of penalty. Then, it discusses the legitimacy of parole withdrawal in China from the legal point of view. First of all, there are provisions on parole cancellation in the criminal law of our country. For parolees who do not conform to the relevant provisions, the judicial organs of our country have the power to cancel parole. Thirdly, the withdrawal of parole is in line with the criminal policy of "combining leniency and strictness" in our country, and the withdrawal of parole for unreformed parolee prisoners is the embodiment of "strict". The second part is the investigation of the conditions of parole withdrawal in China. First of all, we should make a specific distinction between the subjective crimes committed by criminals. If the criminals intentionally commit crimes during the test period, parole should not be revoked, and those who commit negligence crimes should not be released on parole. The new crime is a private prosecution case, we should consider whether the private prosecution case is intentional crime or negligence crime, if the private prosecution case is intentional crime, whether the private prosecutor has told or not should withdraw the parole of the criminal, if the private prosecution case is a negligence crime, the parole should not be revoked. Second, parole should not be revoked if a criminal is found to have missed a crime during the test. Finally, parole should not be revoked when criminals are only minor violations, and only those who commit serious violations of the law should withdraw parole. The third part is the investigation of parole withdrawal in the trial supervision procedure of our country. After the expiration of the parole test, parole has been eliminated, and the original sentence should not be rescinded. It is suggested that the proper but erroneous parole decision should not be retried, which is beneficial to the protection of the established rights and interests of the parolee and the realization of procedural justice. The fourth part, the investigation of the discount of the time limit after the withdrawal of parole in our country. After parole is revoked, the previous inspection time should not be deducted from the sentence, but the additional period of deprivation of political rights that has been implemented during the test period shall remain in force. The fifth part, the investigation of parole withdrawal procedure in our country. It is unreasonable for the lower court to rescind the parole decision made by the higher court, and the decision allowed to be revoked by the court may be appealed in order to coordinate the trial level issues in the criminal procedure law. Most of the parolees break the law, the place where the violation occurred is inconsistent with the place of the court where the original parole decision was made, and it is easy to increase the difficulty of handling the case. In this case, it is suggested that the court under the jurisdiction of the grass-roots people's court where the inspection organ is located lacks the notification procedure for abolishing the parole decision made by the original Magistrates' Court. It is suggested that the court in charge of the new crime should inform the original Magistrates Court before abolishing parole, and should file with the original Magistracy after abolishing parole.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924
，

本文编号：2509413