《刑法修正案（九）》中的终身监禁研究

发布时间：2018-04-09 09:46

本文选题：终身监禁　切入点：刑罚措施　出处：《河南财经政法大学》2017年硕士论文

【摘要】：终身监禁作为一种自由刑,主要存在于英美法系国家,无论是从其理论渊源,还是从国外立法的初衷来看,终身监禁均是以死刑替代刑抑或替代措施的姿态出现的。然而,我国《刑法修正案(九)》在贪污受贿犯罪中规定的终身监禁,并没有照搬照抄国外的经验,新增的终身监禁并非是一种独立的刑罚种类,也非死刑的替代措施。正是这一特殊的立法定位,引起了学术界的大讨论,对贪污受贿犯罪中的终身监禁予以这种特殊的界定,有无妥当性;其应怎样协调《刑法》总则和分则之间的关系;其与其他刑罚,如死刑缓期执行制度、无期徒刑和限制减刑制度间的关系该如何处理等一系列问题,这些争议的问题需要刑法学界深入研究。本文将先从一般意义上的终身监禁之理论起源、内涵、国外法律规定情况,宏观上把握终身监禁。终身监禁源于贝卡利亚的死刑废止观点,他主张废除死刑可以用终身监禁取而代之。此后,这种死刑替代刑的观点在一些国刑法中也得以贯彻,终身监禁在各国的立法表现形式多种多样,但有其共同之处,如其适用对象往往是人身危险性大、罪行严重但是不是必须被判处死刑,而又需要永久隔绝社会的罪犯;其是最严厉的自由刑,对自由的剥夺往往是终身的,但终身监禁的状态可以通过减刑、假释或者赦免改变。反观我国,我国的终身监禁是不得减刑、假释的,由于终身监禁是以增加自由刑的方式压缩死刑的适用,符合刑罚的发展的轻缓化趋势,再加之我国刑事政策要求“严惩贪腐,少用、慎用死刑”,所以,在修法过程中引入终身监禁具有法理、政策和实践价值。要想更好地实现上述价值,就必须对我国《刑法》中新增的终身监禁的法律属性有进一步清晰的认定,从法律规定本身来看,我国的终身监禁应界定为一种依附于死刑缓期执行和无期徒刑的一种兼具行刑与量刑性质的特殊刑罚措施。明确了其法律属性,接着探讨我国终身监禁的适用情况,以及其和《刑法》总则、分则之间的关系,得出终身监禁并没有突破刑罚体系安排,其是对《刑法》总则的变通,是《刑法》分则弥补总则的僵硬性的体现,通过这种例外之规定,使《刑法》更能与时俱进,充分发挥其保障法的作用。同时,规定在分则中的终身监禁不同于总则中的死刑缓期执行制度、无期徒刑和限制减刑制度,其进一步完善了我国的刑罚体系,所以设想将终身监禁独立为一个刑罚种类。
[Abstract]:Life imprisonment, as a kind of free punishment, mainly exists in Anglo-American legal system countries. Whether from its theoretical origin or from the original intention of foreign legislation, life imprisonment appears as a substitute for death penalty or an alternative measure.However, the life imprisonment stipulated in the Criminal Law Amendment (9) does not copy the experience of foreign countries. The new life imprisonment is not a kind of independent punishment, nor is it an alternative to the death penalty.It is this special legislative orientation that has aroused a great discussion in academic circles, whether it is appropriate to give this special definition of life imprisonment in the crime of corruption and bribery, and how it should coordinate the relationship between the general principles and sub-provisions of the Criminal Law;How to deal with the relationship between it and other penalties, such as the system of suspended execution of death penalty, the system of life imprisonment and the system of limited commutation of sentence, and so on. These controversial issues need to be studied deeply in the field of criminal law.This article first from the general meaning of life imprisonment theoretical origin, connotation, foreign legal provisions, macro grasp of life imprisonment.Life imprisonment stems from Beccalya's view that abolition of the death penalty can be replaced by life imprisonment.Since then, this view of alternative death penalty has been carried out in the criminal law of some countries, life imprisonment in various forms of legislation in various countries, but there are common points, such as its application is often the object of high personal danger,A criminal who commits a serious crime but does not have to be sentenced to death and who needs to be permanently isolated from society; it is the harshest form of liberty, and the deprivation of liberty is often life-long, but the state of life imprisonment can be altered by commutation, parole or pardon.On the other hand, in our country, life imprisonment is not subject to commutation or parole. Because life imprisonment is to reduce the application of the death penalty by increasing the free sentence, it is in line with the tendency of the development of the penalty, and in addition, our country's criminal policy requires that "corruption be severely punished."Therefore, the introduction of life imprisonment in the process of amending the law has legal, policy and practical value.In order to better realize the above-mentioned value, we must have a further clear definition of the legal attributes of the new life imprisonment in the Criminal Law of our country. From the point of view of the legal provisions themselves,Life imprisonment in our country should be defined as a special penalty measure with both the nature of execution and sentencing depending on the suspended execution of the death penalty and life imprisonment.This paper clarifies its legal attribute, then probes into the application of life imprisonment in our country, and the relationship between it and the general principles and sub-provisions of the Criminal Law, and concludes that life imprisonment has not broken through the arrangement of penalty system, and it is a modification to the general provisions of the Criminal Law.It is the embodiment of inflexibility of the general principle that the sub-rule of Criminal Law makes up for the inflexibility of the general principle. Through this exceptional provision, the Criminal Law can keep pace with the times and give full play to its function of safeguard law.At the same time, the life imprisonment stipulated in the subclause is different from the system of suspended execution of death penalty in the general rule. The system of life imprisonment and limited commutation of sentence has further improved the penalty system of our country, so it is envisaged that life imprisonment should be regarded as a kind of penalty independently.
【学位授予单位】：河南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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