论终身监禁在贪污受贿罪中的适用

发布时间：2018-06-15 02:36

本文选题：终身监禁 + 《刑法修正案九》　；参考：《安徽大学》2017年硕士论文

【摘要】：《刑法修正案九》对原《刑法》第三百八十三条做了重大修改,引入了终身监禁作为打击严重贪污受贿犯罪的刑罚方式,并对其适用条件做了·原则性的限定。作为一种全新的刑罚方式,笼统的规定显然不能满足司法实践的需要。为此,本文依据《刑法》及相关司法解释的规定从终身监禁适用的依据出发,探讨了终身监禁的法律性质、适用条件和刑罚执行等问题。本文试图回答以下三个问题,第一,作为具有中国特色的"终身监禁"在司法实践中适用的依据;第二,终身监禁的法律性质及裁量因素;第三,被适用终身监禁的犯罪分子在刑罚执行过程中所面临的问题。终身监禁作为一种依附于死缓制度的死刑执行方式引入到《刑法修正案九》中,罪刑法定原则和罪责刑相适应原则是其适用的法理依据;《刑法》及相关司法解释是其适用的立法依据。关于终身监禁的法律性质,刑法学界存在着刑种说、死刑替代措施说等观点。本文认为,终身监禁的法律性质应界定为一种依附于死缓制度的死刑执行方式。终身监禁的这一法律性质决定了其在司法实践中应综合考虑六大因素进行刑罚裁量,分别为时间效力、主体条件、数额及犯罪情节、犯罪后果、量刑情节以及刑事政策。首先,在时间效力方面,法律适用者应坚持从旧兼从轻的原则;其次,对于终身监禁适用的主体条件,由于是作为贪污受贿罪量刑的专门条款,所以仅适用于贪污罪和受贿罪两个罪名;再次,由于终身监禁依附于死缓制度,终身监禁的适用还需要满足贪污受贿数额特别巨大、犯罪情节特别恶劣、给国家和人民造成重大损失及社会影响恶劣等条件,这些条件虽然被《刑法》及相关司法解释予以明确,但大都规定的过于原则,需要法律适用者在司法实践中予以准确把握;最后,终身监禁的适用还需要把握当下国家依法打击贪污受贿类罪的刑事政策。法律适用者应坚持宽严相济、慎用死刑的原则。终身监禁的准确适用最终依靠刑罚的执行,应区分死刑缓期执行期间和依法减为无期徒刑后两个阶段区别对待。罪犯在死缓考验期有重大立功表现的,考验期满应减为有期徒刑,而在无期徒刑阶段则不能因为重大立功而减刑。罪犯在死缓考验期间实施犯罪的,也应按《刑法》第五十条第一款的规定区别处理。适用终身监禁的罪犯还能因为特赦而使刑罚消灭。
[Abstract]:Article 383 of the former Criminal Law has been greatly amended by the Amendment 9 of the Criminal Law, which introduces life imprisonment as a penalty for cracking down on the crime of serious corruption and bribery, and defines its applicable conditions in principle. As a new way of punishment, general provisions obviously can not meet the needs of judicial practice. Therefore, according to the provisions of Criminal Law and related judicial interpretation, this paper discusses the legal nature, applicable conditions and penalty execution of life imprisonment from the basis of the application of life imprisonment. This paper attempts to answer the following three questions: first, as the basis for the application of "life imprisonment" with Chinese characteristics in judicial practice; second, the legal nature and discretion of life imprisonment; third, Problems faced by criminals who are subject to life imprisonment in the execution of penalties. Life imprisonment is introduced into the Ninth Amendment to the Criminal Law as a way of executing the death penalty depending on the death penalty suspension system. The principle of legally prescribed punishment for a crime and the principle of adaptation of punishment for a crime are the legal basis for its application, while the criminal law and related judicial interpretations are the legislative basis for its application. Regarding the legal nature of life imprisonment, there are views in the field of criminal law, such as the theory of type of punishment and the theory of alternative measures to the death penalty. This paper holds that the legal nature of life imprisonment should be defined as a kind of execution of death penalty. The legal nature of life imprisonment determines that it should comprehensively consider six major factors in judicial practice, namely, time effect, subject condition, amount and crime circumstances, consequences of crime, sentencing circumstances and criminal policy. First of all, in terms of time effectiveness, the applicable law should adhere to the principle of "from the old to the lighter"; secondly, for life imprisonment applicable to the main conditions, because it is a special provision for the crime of corruption and bribery sentencing, So it only applies to the two charges of embezzlement and bribery; thirdly, because life imprisonment is attached to the death penalty suspension system, the application of life imprisonment also needs to satisfy the huge amount of corruption and bribery, and the crime is especially bad. It has caused great loss to the country and people and bad social influence. Although these conditions have been defined by the Criminal Law and the related judicial interpretation, most of them are too principle, which need to be accurately grasped in judicial practice by those who are applicable to the law. Finally, the application of life imprisonment also needs to grasp the current national criminal policy of fighting corruption and bribery. Those who apply the law should adhere to the principle of combining leniency with severity and using the death penalty with caution. The accurate application of life imprisonment ultimately depends on the execution of the penalty, which should be distinguished between the suspended execution of the death penalty and the commutation to life imprisonment according to law. If a criminal performs great meritorious service during the period of suspension of death penalty, he shall be commuted to fixed-term imprisonment at the expiration of the test period, while the sentence shall not be commuted for the important meritorious service at the stage of life imprisonment. If a criminal commits a crime during the reprieve of death penalty, he shall also be treated differently in accordance with the provisions of Article 50, paragraph 1, of the Criminal Law. Criminals who are subject to life imprisonment can also be exterminated by amnesty.
【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】：D924.3

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