论我国的终身监禁

发布时间：2018-05-16 00:29

本文选题：终身监禁 + 贪污受贿　；参考：《河南师范大学》2017年硕士论文

【摘要】：终身监禁在国外普遍适用,已经形成了一种很成熟的制度,是大多数国家打击严重暴力犯罪最严厉的刑罚。在贪腐问题日益严重的今天,刑法修正案(九)在重特大贪污受贿罪中设立了终身监禁。对于我国来说终身监禁还是个新兴事物。鉴于我国慎用死刑的政策,加之实践中存在贪污受贿的犯罪分子通过减刑、假释逃避刑罚的问题,笔者明确了在重特大贪污受贿罪中引入终身监禁的必要性与紧迫性。截止到笔者定稿,我国一共有三例判处终身监禁的案例。鉴于可参考的案例较少,加之刑法只有一条关于终身监禁的条文,实践中应当怎样具体适用终身监禁这一刑罚措施就成了本文的写作重点。笔者以我国终身监禁第一人白恩培案为切入点,以案例解读法条,详细阐述了终身监禁的适用对象、情形和原则等问题。本文又以案例印证法律规定,同时又依据案例分析出了相关法律规定的不足之处。最后,通过对法律条文的详细解读,笔者试图提出了完善终身监禁的一些建议。如何准确适用终身监禁是实践中最重要的问题,结合我国已经决定适用终身监禁的案例,笔者在文章中解读了终身监禁的具体适用条件。笔者在文章中最先概括了终身监禁的起源以及终身监禁在国外的立法情况,可以看出终身监禁在国外大多数国家在很早之前就已经适用并且适用对象广泛,可以说是一种很成熟的量刑制度。进而分析了我国学者对于终身监禁性质的不同观点,包括终身监禁的性质是独立刑种、刑罚执行措施和死刑替代措施,笔者得到的结论是我国的终身监禁是一种执行措施。第二部分,笔者以我国首例判处终身监禁的案例为切入点,分析了终身监禁的立法规定,即对贪污受贿数额特别巨大,并造成特别重大损失且被判处死刑缓期执行的犯罪分子,法院在量刑时可以酌定宣告在判处犯罪分子死刑缓期两年执行期满转为无期徒刑后增加不得减刑假释的终身监禁。笔者通过法律条文和实践案例相结合的方式,针对该法条详细解读了终身监禁在实践中的具体适用标准,包括适用的对象、情形、原则和终身监禁的溯及力问题。明确了终身监禁的适用对象、情形和原则等问题,才能在实践中做到更准确的量刑。此外,终身监禁作为真正的无期徒刑,笔者还对比了其与我国现行刑法中的无期徒刑的异同,精确定位了终身监禁的适用范围。第三部分笔者阐述了在贪污受贿罪中增设终身监禁的目的和意义,特别是终身监禁仅适用于重特大贪污受贿犯罪,不仅具有明显的政治价值,对我国的刑罚体系也有重要意义。它既可以打击现阶段严重的贪腐现象,又有助于完善量刑体系,还是尊重保障人权的价值所向。第四部分,随着终身监禁在实践中的适用,监狱随之会产生一些问题。由于终身监禁不得减刑、假释,加剧了本来就接近饱和的监羁押率。再者,判处终身监禁罪犯年龄的增大,无论是对监狱的医疗机构还是监狱工作人员的工作都会造成很大的困扰。最后,针对现有的法条,笔者在司法实践和立法操作上提出了一些完善终身监禁的建议。
[Abstract]:Life imprisonment, which is widely applied abroad, has formed a very mature system and is the most severe punishment in most countries to combat serious violence. In today's increasingly serious corruption problem, the criminal law amendment (nine) has set up a life imprisonment in the crime of serious corruption and bribery. For our country, life imprisonment is a new thing. In our country, with the policy of using the death penalty carefully, and the crime of bribery and bribery in practice, the author has made clear the necessity and urgency of introducing life imprisonment in the crime of serious corruption and bribery. As of the author's final draft, there are three cases of life imprisonment in our country. There are few cases, and there is only one article about life imprisonment in the criminal law. In practice, how to apply the life-long imprisonment is the key point of writing. The author, taking the case of the first person in life imprisonment in China as the starting point and the case interpretation method, expounds the applicable object, the situation and the original of the life imprisonment. This article also confirms the legal provisions in the case, and analyzes the shortcomings of the relevant laws according to the case. Finally, through the detailed interpretation of the provisions of the law, the author tries to put forward some suggestions to improve the life imprisonment. How to apply the life imprisonment accurately is the most important problem in practice and is decided by our country. In the article, the author unscramble the specific conditions of life imprisonment. In the article, the author first summarized the origin of life imprisonment and the legislation of life imprisonment in foreign countries. It can be seen that life imprisonment in most countries has been applied and widely applicable to most countries in foreign countries. It is a very mature system of sentencing. Then it analyzes the different views of Chinese scholars on the nature of life imprisonment, including the nature of life imprisonment, the nature of the imprisonment, the execution of penalty and the replacement of death penalty. The conclusion is that the life imprisonment of our country is a kind of implementation measure. The second part, the first case of our country is sentenced to the end. The case of incarceration is the breakthrough point. It analyses the legislative provisions of life imprisonment, that is, a criminal element which is particularly large in the amount of corruption and acceptance of bribes, and causes a special major loss and is sentenced to reprieve in the execution of the death penalty. The court can make a discretionary announcement when the sentence is sentenced to two years to be sentenced to life imprisonment. Through the combination of legal provisions and practice cases, the author detailedly interprets the specific application standards of life imprisonment in practice through the combination of legal provisions and practice cases, including the applicable objects, circumstances, principles and the tracing of life imprisonment. The application objects, circumstances and principles of life imprisonment are clarified. In practice, to achieve more accurate sentencing. In addition, life imprisonment as a real life imprisonment, the author also contrasts the similarities and differences with life imprisonment in the current criminal law of China, and accurately locates the scope of life imprisonment. The third part of the author expounds the purpose and significance of the establishment of life imprisonment in the crime of corruption and bribery, especially for life. Imprisonment only applies to the crime of embezzlement and bribery, not only has obvious political value, but also has important significance to our country's penalty system. It can not only combat the serious corruption at the present stage, but also help to improve the system of sentencing and respect the value of protecting human rights. In the fourth part, with the application of life imprisonment in practice, There will be some problems in prison. Because life imprisonment is not allowed to be cut off, parole, exacerbated by the confinement rate that is already near saturation. Furthermore, the increase in the age of prisoners for life imprisonment will cause great distress to both the prison medical institutions and the prison staff. Finally, the author is in the Department for the existing law. There are some suggestions for perfecting life imprisonment in practice and legislation.

【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

【参考文献】