论我国终身监禁制度的完善

发布时间：2018-06-14 21:59

本文选题：终身监禁 + 贪污受贿罪　；参考：《安徽财经大学》2017年硕士论文

【摘要】：终身监禁在国内外刑法学界都没有一个统一确切的概念,通说认为,它是将犯罪分子羁押于特定场所并剥夺终身自由的刑罚,其本质是自由刑。终身监禁作为死刑的替代措施,最先由意大利刑事古典学派创始人贝卡利亚提出,其在《论犯罪与刑罚》一书中,批判了死刑制度,主张以终身监禁作为死刑的替代措施。经过一百多年的发展,终身监禁制度在西方乃至整个世界范围内都得到了广泛的使用。而我国刑罚发展史上并没有关于终身监禁的相关规定,终身监禁制度是作为一种舶来品传入我国,并引起我国学者的广泛关注,以往对于终身监禁的讨论多是基于替代死刑的立场。我国于2015年11月1日施行了《刑法修正案(九)》,其中第44条第4款创造性地增设了终身监禁制度,至此我国以法律的形式明确了终身监禁的地位。就目前立法来看,我国的终身监禁并非一种新的刑罚种类,亦非死刑的替代措施或者废止死刑的过渡措施,而是仅适用于被判处死刑缓期执行的重特大贪污受贿犯罪分子在依法减为无期徒刑后的一种特殊的刑罚执行措施。终身监禁作为一项全新的制度,在我国的司法实践中存在着积极的价值。它不仅有利于弥补贪污受贿犯罪“死刑偏重、生刑偏轻”的刑罚结构缺陷,也有利于严厉打击腐败犯罪规范权力的运行和避免“错杀、误杀”现象的发生,更能切实有效的减少死刑的实际运用,同时也为我国的涉外司法协助和死刑的废除提供新动力。然而任何一项制度都不可能十全十美,因此终身监禁制度不可避免的存在各种不足。首先从立法上看,《刑法修正案(九)》所规定的适用标准不够明确,如犯罪数额标准不明确、犯罪情节过于模糊抽象等。而且我国的终身监禁制度缺乏回归社会的机制,并只适用于特定贪污受贿犯罪,适用范围过于狭窄。其次从司法上看,由于服刑人员看不到重获自由的机会,而不认真接受教育改造,甚至采取一系列极端行为,大大增加了监狱监管执行的压力。同时随着终身监禁制度的运行,监狱受刑者老年化问题也将越来越突出。而且监狱为实现对服刑人员的教育改造,需投入大量的国家资源,增加了监狱的成本。这就需要我们立足我国具体国情,并借鉴欧美国家关于终身监禁的优秀经验,为我国的终身监禁的实施提出自己的完善建议。首先在立法上,应进一步明确终身监禁的适用标准,完善终身监禁的救济途径,并在严格限制死刑适用的基础上适度扩大终身监禁的适用范围。其次在司法上,我国需要完善监狱的监督管理体系以及老年服刑人员的保障措施,同时也需优化监狱节约成本的方式。只有这样终身监禁在今后的司法实践中才能最大限度发挥其所应有的积极价值,促进我国的刑罚制度改革以及法治化建设。
[Abstract]:Life imprisonment does not have a unified and precise concept in the field of criminal law at home and abroad. It is generally believed that life imprisonment is the penalty of detaining criminals in a specific place and depriving them of their freedom for life, and its essence is free punishment. Life imprisonment, as an alternative measure to the death penalty, was first put forward by Bercaria, the founder of Italian classical criminal school. In his book on Crime and penalty, he criticized the death penalty system and advocated that life imprisonment should be taken as the alternative measure of death penalty. After more than 100 years of development, life imprisonment system has been widely used in the West and the whole world. However, there are no relevant provisions on life imprisonment in the history of penalty development in China. The system of life imprisonment is introduced into our country as an import, and has aroused the widespread concern of Chinese scholars. Previous discussions on life imprisonment have been based on a position of alternative to the death penalty. Our country carried out the Criminal Law Amendment (9) on November 1, 2015, in which Article 44, paragraph 4, creatively added the system of life imprisonment, thus our country defined the status of life imprisonment in the form of law. As far as the current legislation is concerned, life imprisonment in China is not a new type of penalty, nor is it an alternative to the death penalty or a transitional measure to abolish the death penalty. It is only a special measure of execution after the penalty is commuted to life imprisonment for the extremely serious corruption and bribery criminals who have been sentenced to death penalty suspended. As a new system, life imprisonment has positive value in the judicial practice of our country. It is not only helpful to remedy the penalty structure defects of corruption and bribery crime, but also to crack down on the operation of the power of corruption crime and to avoid the phenomenon of "wrong killing, wrong killing". It can effectively reduce the actual use of the death penalty, but also provide a new impetus for foreign judicial assistance and the abolition of the death penalty. However, any system can not be perfect, so life imprisonment system inevitably has a variety of shortcomings. First of all, from the legislative point of view, the applicable standards stipulated in the Criminal Law Amendment (9) are not clear enough, for example, the standard of the amount of crime is not clear, the circumstances of the crime are too vague and abstract, and so on. Moreover, the system of life imprisonment in our country lacks the mechanism of returning to society, and it is only applicable to certain crimes of corruption and bribery, and the scope of application is too narrow. Secondly, from the judicial point of view, because the prisoners do not see the opportunity to regain their freedom, they do not seriously receive educational reform, and even take a series of extreme acts, which greatly increases the pressure of prison supervision and enforcement. At the same time, with the operation of life imprisonment system, the aging of prison inmates will become more and more prominent. In order to realize the educational reform of the prisoners, the prison needs a lot of national resources, which increases the cost of the prison. This requires us to base ourselves on the specific conditions of our country and draw lessons from the excellent experience of European and American countries on life imprisonment, and put forward our own perfect suggestions for the implementation of life imprisonment in our country. First of all, in legislation, we should further clarify the applicable standards of life imprisonment, improve the remedy of life imprisonment, and appropriately expand the scope of life imprisonment on the basis of strict restrictions on the application of the death penalty. Secondly, in the judicial aspect, our country needs to perfect the prison supervision and management system and the safeguard measure of the aged prisoners, and also needs to optimize the way of the prison cost saving. Only in the future judicial practice can life imprisonment give full play to its positive value and promote the reform of the penal system and the construction of the rule of law in our country.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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