【作者】 周娅；

【导师】 莫洪宪；

【作者基本信息】 武汉大学 ， 刑法学， 2005， 博士

【摘要】 短期自由刑是自由刑制度的一种表现形式,在现代刑罚轻缓化的背景趋势下日显重要。本文从分析短期自由刑的概念着手,探讨了短期自由刑的基本理论问题、相关制度比较、具体实践状况,以及我国具体的行刑社会化措施。全文除引言、绪论外,共分四章。 引言简要介绍了短期自由刑的现实意义和现有理论观点。阐述了短期自由刑存在的背景支持,结合我国法律制度和司法实践,指出本文的研究将从理论演绎和实证调查两个方面展开。表明本文将采用两种不同的研究方法,以达到促使人们明了短期自由刑的现实意义与正当性根据,促进司法实践中短期自由刑的刑罚效用发挥至最佳状态的目的。 绪论分析了短期自由刑的概念。首先将本文的自由刑定位为“剥夺自由刑”,从而排除了“限制自由刑”的适用。因为短期自由刑最大的争议问题就是它剥夺了犯罪人的自由,把犯罪人关进监狱但又容易发生交叉感染。限制自由刑并不发生这种问题。其次本文将短期自由刑的期限界定为3年以下有期徒刑和拘役。这一界定和国际通行观点有所区别,但是针对我国现实国情与法律传统所做出的选择。从我国刑罚结构配置上、实证研究的客观要求上、罪行轻重体系上和刑罚变通执行方式上看,这一期限范围是我国短期自由刑研究的最佳着眼点。同时也强调,在其中还可以细划。短期自由刑最有代表性的部分,应该是1年以下有期徒刑和拘役。 第一章探讨的是短期自由刑的本体问题。首先将短期自由刑置于现代刑事政策的大背景下考察。现代社会,各国刑事政策普遍朝着“轻轻重重”两极化发展。宽松刑事政策对短期自由刑的发展具有重要意义,它是刑法谦抑思想、刑法经济性、犯罪原因的深化认识、刑法人道性等观念的具体体现。本文主要考察了宽松刑事政策在刑罚实践和刑事程序上的体现。它的主要刑罚实践体现为刑罚轻缓化和行刑社会化。本文从刑罚人道思想、刑罚效益思想和教育刑思想出发,指出刑罚轻缓化的发展趋势蕴涵着丰富的人道主义底蕴,符合刑罚的目的。同时运用复归理论与刑事补偿理论分析了刑罚功能的有限性,行刑社会化存在的合理性。认为它注重刑罚效益,是缓解监狱行刑悖论、提高行刑效能和改造质量的根本出路,代表着国际行刑发展方向,符合现代刑事政策的要求。更多还原

【Abstract】 As a kind of imprisonment penalty system,short-term imprisonment penalty is more and more important in the context of lighter punishment.After analysing the definition of short-term imprisonment penalty,the paper explores the basic theory,comparison with relevant systems,concrete practical details and measures for socialization of execution in China.Besides preface and introduction,there are four chapters.Preface gives a brief introduction for the practical significance and current theoretical viewpoints of short-term imprisonment penalty. And it expounds deep-seated reasons for the existence of short-term imprisonment penalty and points that the paper will research from the angles of theoretical deduction and empirical survey on the basis of Chinese legal system and judicial practice.All this demonstrates that the paper will adpot two different research measures so as to promoting people’s understanding for the realistic significance and justifiable basis of short-term imprisonment penalty and gaining full exertion of its function in justice.Introduction analyses the definition of short-term imprisonment penalty. In the first, the paper defines short-term imprisonment penalty as a kind of imprisonment penalty of depriving liberty and thus excludes the application of imprisonment penalty of limiting liberty.Because main controversy against short-term imprisonment penalty is that it deprives criminals’ liberty and throws them into prison so that cross infection will take place easily.But imprisonment penalty of limiting liberty will not give rise to such problems.Secondly,the paper defines short-term imprisonment penalty as fixed-term imprisonment of not more than three years and criminal detention.It is different from international mainstream,but it is a choice on the basis of Chinese realistic conditions and legal tradition. In respect of Chinese types of punishments, objective requirements of empirical study, the degree of crime and substitute of execution for punishments, such limitation for term is thebest definition in China.At the same time,more detailed term can be comfirmed.In the scope,the most representative part of short-term imprisonment penalty is fixed-term imprisonment of not more than one years and criminal detention.Chapter I sets forth the essence of short-term imprisonment penalty.First it is placed in the context of modem criminal policy.In modem society,criminal policy of each state trends polarization of "petty-light and serious-heavy ".Lenient criminal policy plays an important role in the development of short-term imprisonment penalty and it is embodiment of modest and restrain of punishments,economical efficiency of punishments,furthur realization of criminal reason and humanitarianism.The paper mainly examines concrete embodiment of lenient criminal policy in practice of punishments and criminal procedure.In the area of practice of punishments,it shows lighter punishments and socialization of execution for punishments.The paper points that the trend of lighter punishments contains plenty of spirit of humanitarianism and accords with the aim of punishments from angles of humanitarianism,effectiveness and educational function of punishments.At the same time, the paper analyses the limitation of function of punishments and rationality of socialization of execution for punishments on the basis of revert theory and criminal compensation theory.The author thinks that socialization of execution for punishments attaches importance to effectiveness of punishments, and it is the basic solution for alleviating paradox of execution in prison,raising efficiency of execution and reconstruction quality and represents future trend of international execution and accords with requirements of modem criminal policy. The main embodiments of lighter punishment in procedure are divertion punishments and recovery justice.The two practice carve out broader way for criminal law and promote predigestion for treatment of petty cases in criminal procedure,which sets up a modle for short-term imprisonment penalty.Because they directly reduce the objects for criminal treatment and the application of short-term imprisonment penalty. Let’s think from another angle,these reforms for procedure have the same character of short-term imprisonment penalty,that is to find a solution beyond traditional criminal law and create a new value thought and mode of "rule oflaw".Secondly, the paper analyses the controversy of reservation or abolition for short-term imprisonment penalty.The author analyses the disadvantages of short-term imprisonment penalty from various angles and gives a systemic introduction for reservation theory.And on this basis ,the papers analyses the value base of short-term imprisonment penalty from the angle of stage theory of punishments distribution and thinks over it realistically. In the end,the paper points out the close relationship between short-term imprisonment penalty and criminal incorporation.Criminal incorporation unites types of criminal law and optimizes criminal function.The parctice and effectiveness of execution of short-term imprisonment penalty are the problem. Such problems as response of prosoner,their relative,victim and the public,organs for execution of punishments and repeated crimes after freeed will directly show the effect of execution of punishments. Imprisonment penalty is the primary of Chinese types of punishments, so the effectiveness of punishments lies prison mainly.lt is a reasonable choice of modern criminal policy to the disadvantages of imprisonment penalty and development of non-imprisonment penalty.The substitution for short-term imprisonment penalty can accord with it excellently.At the same time,criminal function comprises other stages of criminal procedure besides sentencing in the context of judgment.For example,the conditions of appliction for diversion treatment ,which directly decides the percent of application of short-term imprisonment penalty, is an important embodiment of criminal function.Chapter II researches relevant systems of short-term imprisonment penalty. The paper choose public surveillance and rehabilitation-through-labor. The difference between public surveillance and short-term imprisonment penalty the degree to limit the criminal’s liberty.Their essence is a kind of compulsory measures and there is not much difference in their term,have obvious same part in the scope of application,furthermore when thinking over the substitution of short-term imprisonment penalty,public surveillance can not be ignored. On the basis of empirical data the paper shows that the percent of application for public surveillance is very low-especially in comparion with probation which has similar condition forapplication with it. The reason for it is the inherent disvantage of public surveillance on current conditions.The paper brings forward mutual transaction of short-term imprisonment penalty and public surveillance after examining the imprisonment penalty of limiting liberty in Russian ,English and American Criminal Law and thinking over Chinese imprisonment penalty system of limiting liberty form the angle of comparative law.Because thers is close relationship between them and the diversion treatment between them will pose positive significance for Chinese justice and has realistic possibility.Though it is a partial change for the types of punishments ,but it reflects the reform for stand of whole punishments function.Another relevant system is rehabilitation-through-labor,which is on the basis of their similarity of depriving liberty.At present, Chinses rehabilitation-through-labor have encountered diffculties.The paper thinks it is necessary to define its character. In China,rehabilitation-through-labor is a kind ofadministrative penalty,but produces paradox of justice while application.As a kind of administrative penalty,it is not enough for a kind of punishment,but its effect has the same even heavier treatment as short-term imprisonment penalty.The wrong place between rehabilitation-through-labor and short-term imprisonment penalty breaks the inherent link between administrative penalty of depriving liberty and punishments and produces practical paradox.In addition,it is not a question between system and arrangement ,but a question of distribution for power.The paper thinks in modern states of "rule of law",the administrative power can not deprive the citizen’s liberty so long as three even four years without procedure in justice.Hence the author thinks about the validity and rationality of rehabilitation-through-labor and produces the reform mode,that is becoming punishments and get into justice. After becoming a kind of punishments, because of its similarity in sequence asshort-term imprisonment penalty the rehabilitation-through-labor will become a effective punishment in the intermediate stage from imprisonment penalty of depriving liberty to substitution for imprisonment penalty. Rehabilitation-through-labor can be created as a kind of punishemnt of quasi-depriving liberty between publice surveillance and criminal detention andmodify its treatment and term.At the same time,getting rehabilitation-through-labor into justice accords with the need of reality.Since there is disadvantage in power distribution for current legal sanctions,the new distribution of power-drift from administrative power to judicial power-is a natural thing of reform.Chapter III examines the judicial application of short-term imprisonment penalty. This chapter main adopts empirical study.First,when we research short-term imprisonment penalty,we should not only understand the value and practical significance of the system,but also know what it looks like in judicial practice on Chinese conditions.The author collects plenty of first-hand data involving several provinces,such as the sentencing statistics from courts,the analysis for percent from prisons,the questionnaire in prison,detention house, reformatory juvenile delinquents,interview with police officers and prisoners. Using charts the author shows the conditions of ending cases in certain courts in recent years,the distribution of various punishments,the punishments for juvenile criminals,the percent of term in certain prison and so on. At the same time,on the analysis for the questionnaire about prison item by item,the author understand the basic thought of short-term prisoners and their understand and identification for judgment,imprisonment penalty and non-imprisonment penalty,the practical effect of short-term imprisonment penalty,the prisoners’s appraisement ,hope and worry for their life after discharged from prison. On the basis of all this result,the author prospects the development scope.In the other hand,in modern society,the reform measures for short-term imprisonment penalty have developed because of its appearance of disvantages.,which is new distribution for its execution on the basis of recognizing the value of it. The imprisonment and reform measures of short-term imprisonment penalty should earn the same place, and they can be formed a complete set,provide different function and establish mechanism of cooperation. For the criminas who should be imposed short-term imprisonment penalty,we can choose execution measures on the conditions of each criminal.Usually reform measures of short-term imprisonment penalty can be listed as three types:one is adopt new substitute,the other is improve the treatment ofshort-term imprisonment penalty,another is to restrain the announcement or execution of short-term imprisonment penalty to the best of our abilities.Chapter IV explores the concrete embodiment of socialization of execution for punishments in China- community correction. As a type of execution for punishments,community correction is a lower concept of socialization of execution for punishments and concrete embodiment of its static state of system area and dynamic state of function area.Excellent community organizations and scientific thoughts of correction penalty is the theoretical base of community correction.The work which has been done in the area of community correction in China has realistic sifnificance.The criterion of this kind of work is constitutional law,criminal law,relevant international convention and "the Announcement on Developing Community Correction in Pilot Area1 .The public security organ is the subject of such execution,but in practice, pilot provinces or cities often establish a work mode of" politics and law committee hasunified leadshipjustice of bureau carries into execution,each department of politics and law cooperatesjustice station executes directly ’.There are five types of objects for correction in the Announcement.But there are such confinement factor for Chinese community correction as deficiency of social consciousness for the its existence,absence of relevant regulations for its work ,its distemperedness organizations, faintness of the its staffs authority, absence of professional person and the mechanism to educate and attract such person,the necessity to improve the construction of community.Therefore,we should develop community correction vigorously,and we can reform from such ways: renew the public and judicial staffs thought, improve relevant legal system,construct system for community correction and confirm the authority and function of its organizations, strengthen the community construction,taking advantage of community resource to attract professionals and pioneers to join correction staff.更多还原