【作者】 柳忠卫；

【导师】 王作富；

【作者基本信息】 中国人民大学 ， 刑法学， 2004， 博士

【摘要】 假释是国家有权机关对于符合法定条件的正在被执行剥夺自由刑的罪犯,经法定程序将其附条件提前释放的刑罚执行制度。在当代,假释已经从一种国家对个别罪犯的恩惠演变成罪犯普遍享有的一种权利,是罪犯在自由刑执行过程中保持良善行为的结果。因而,在关于假释本质的各种学说中,假释权利说是合理的。假释权利说是以现代刑法思想为指导的对假释本质的全新的诠释,是国家对罪犯刑罚观念和关系的嬗变在假释本质理论上的具体反映。现代法治国社会国家原理改变了传统的刑罚关系,国家或刑罚权主体与罪犯的关系由传统的单向关系变成了具有社会意义的在一定情况下的权利义务的关系。国家有对罪犯施用刑罚的权力,也有对他们施以扶助和救助的义务。罪犯有依法接受国家刑事惩罚的义务,也有请求扶助和挽救的权利。假释权利说与现代刑罚的目的相契合,报应与预防兼容的刑罚目的综合理论是合理的。国家对罪犯的强制性隔离,只有在对罪犯的矫正和改造没有收到预期的效果时,才是必要的和正当的。如果罪犯在经历了必要的监禁期以后,以自己的行为表明其已不具有人身危险性和社会危害性,国家就有义务将其放归社会,以社会处遇的方式,执行尚未执行的刑罚。假释权利说观念指导下的假释已由例外变成了一种原则,一种制度化的处遇措施。它充分利用了自由刑的时间弹性,使自由刑的执行变得充满生机和活力,它也大大激发了罪犯改过自新、奋发向上的原动力,因而无论对罪犯还是监狱来说都具有非常深刻的革命性意义。假释权利观念在世界许多国家的刑事立法和司法实践中都占据了主导地位。由假释的本质所决定,假释权应是一种行政权而非司法权,假释权应当由行政性质的狱政部门或专门的假释委员会行使。假释的功能是指国家有权机关对罪犯适用假释所产生的积极的社会作用。假释对罪犯的功能包括激励罪犯自新向善、帮助罪犯顺利回归社会、弥补无期徒刑和长期自由刑的弊端以及使严厉的刑罚变得轻缓。假释对监狱的功能包括维护监狱的秩序、缓解监狱拥挤的状况和节约监狱经费。假释对社会的功能包括保护社会和延续惩罚。 假释制度具有悠久的历史,它在19世纪发端于英属殖民地澳大利亚。假释制度的产生是一个逐渐的过程,是一个从无到有、从不完善到完善的嬗变。当时英国的流放制度为假释的产生提供了契机,亚瑟·菲利蒲的释放票制是假释制度的萌芽,亚历山大·麦克诺基的点数制是假释的雏形状态,沃尔特·克罗夫顿的爱尔兰制标志着假释制度的最后确立。假释制度产生后,其他国家纷纷效仿,很快在各国的刑罚执行制度中取得了举足轻重的地位。美国纽约州议会1876年制定的《埃尔米拉教养院法令》是世界上第一个关于假释制度的立法。中国最早规定假释制度的法律是1910年的《大清新刑律》。新中国更多还原

【Abstract】 The parole is a punishment execution system which the powerful organization of country releases the prisoners of according with the legal condition on condition who are being executed punishment of depriving liberty prior to the expiration of their sentence by legal process. In modern society, parole has evolved from the grace which the country endow with the individual prisoner to the right which the prisoners enjoy generally. It is the fruit that the prisoners keep good act during the term sentence. The parole right theory is rational in these theories about parole essential theory. Parole right theory is a new explanation about parole essence directed by the modern criminal idea. It reflects the evolving of the punishment idea about the relationship of country and prisoners. The social country principle of modern country of rule by law has changed the traditional punishment relationship. The relationship of the country and the prisoners has evolved from the traditionally single relationship to the social meaning conditional relationship of right and duty. The country has the power to punish the prisoners. Meanwhile country has the duty to help and save the prisoners. The prisoners have the duty to accept the criminal punishment of country. They also have the right to apply for the help and remedy. The power right theory accords with the modern penal aim. The synthetical theory of purpose of penalty which is compatile with retribution and prevention is rational. The country isolate the prisoners compulsorily is essential and reasonable only when the reform have not achieved the anticipated effects. The country has the duty to release the prisoners to the society and executes the surplus punishment through social treatment way when prisoners have been executed essential term sentence and their act have indicate that they have no the personal danger and social harmfulness. The parole directed by the idea of parole right theory has changed from the exception to a principle and a systematized treatment measure. It fully utilizes the time elasticity of the liberty punishment and makes the execution of liberty punishment brimming vitality and vigor. It also fully stimulates the prisoners to reform and progress. Parole right theory has very deep revolutionary meaning to the prisoners and the prisons. The idea of parole right theory dominates the criminal legislation and the judicial practice the essence of parole decides that the parole power is an administrative power other than a judicial power. Parole power should be carried out by the organization of prison administration with administrative character special parole board. The function of parole is a active social function which the powerful organization of the country applies the parole to the prisoners. The parole function to prisoners includes encouraging the prisoners to make a new start anddo good act ,helping the prisoner to return to society smoothly, supplementing the malpractice of life imprisonment and long term of depriving liberty sentence, making the severe punishment modified.Parole system has a long history. It emerged in Australia where was a colony to England in nineteen century. The emerging of parole system had been a gradually process. The process had been an evolution from black space to emerging, imperfecting to perfecting. The banishing system of the England offered the chance to the emergence of parole. The Ticket of Leave of Authur Philip was the sprout of the parole system. The Mark System of Alexander Maconochie was the embryonic form. The Irish Progressive System of Walter Crofton indicated the finial establishment of parole system. Other countries followed the example of the parole system one after another after it’s establishment. The parole system took the important status in the punishment execution system of each country. The Elmira Reformatory Act which the New York State Parliament enacted in 1869 is the first legislation about the parole system. The first law stipulated the parole system in china is The Qing Dynasty New Criminal Law which was acted in 1910. After the New China establishment, The People’s Republic of China Labor Reform Act which the state council enacted in September 7,1954 was the first administrative act which stipulated the parole system. The 1979 Criminal Law stipulated the parole system in criminal law code in our country. The parole system which the 1979 criminal law stipulated is praiseworthy in technique of legislation, contain of stipulating and scientific rationality. It was the symbol of the establishment of modern parole system in our country. The 1997 Criminal Law has supplemented and perfected the legislation of parole of 1979 Criminal Law. It makes the system and structure of parole system more perfecting and rationalizing, the contains of parole system more painstaking and detailing. It fully embodies the social prevention function of the criminal law. The main defect of the parole system of 1997 criminal law is the insufficient in protecting the human right of prisoners. For example, It stipulates that the recidivists and the prisoners who committed crimes of violence and was sentenced heavy penalty shouldn’t be paroled. It also stipulates strict parole revocation condition to some acute critics from the domain of criminal law theory and the judicial practice.The theory and learning argue of the criminal classical school and the criminal positive school was the very spectacular in the developing history of the criminal law theory. The result of the argue has produced a more deep and long effects to the forming of modern criminal law theory and the criminal legislation and criminal judicature of each country of the world. The criminal classical school can’t offer the theory foundation for parole. The personal danger theory was thecore foundation of the criminal positive school. Its establishment and development was the premise and idea foundation. The visual angle of personal danger theory was to study the question of criminal essence from the angle of actor. It made the focus of the criminal law science changed from the criminal act to convict. It offered the theory space of criminal law science for the establishment of parole system. The personal danger theory changed the traditional idea of criminal responsibility. It offered the responsible theory foundation for the parole system. The personal danger theory also realized modifying the original judicial idea of criminal law. It offered a rational explain to the justice character of parole system. The personal danger theory took the process of executing the liberty punishment as the process of annihilating the personal danger. It poured the new idea into the execution of liberty punishment. It made the parole system obtaining the rational explanation in theory and standard of performance in practice. We should realize the question of personal danger rationally other than raise it’s value of theory and practice without limit. The modern criminal law theory holds that the theory of penal aims has extensively been used to prove the rational foundation of the system of criminal judicature. The synthetic theory of purpose of penalty is rational in all of the theory of purpose of penalty. The justice character is the basic attribute of the social system and law system. The parole system reflects the retributive purpose of punishment. It implicates the requirement to the penalty justice. It has fully just foundation. Parole is one of the important means to encourage the prisoners to correct faults and do good act. Parole guides the prisoners to step on the right road. Parole keeps supervising and protecting the prisoners after they returning to the society until they fully adapts to the social life. In this sense, the parole system accurately expresses the purpose of special prevention of penalty. It is an important means to realize the purpose of special prevention of penalty. The application of parole is restricted by the purpose of general prevention meanwhile it is beneficial to realization of the purpose of general prevention. The theory of educational penalty is the most directed and fundamental foundation of the parole. The theory of educational penalty deems that the reform of prisoners is just and the prisoners may be reformed. The parole system grew up and developed on the basis of reform of prisoners. The justice character of prisoner reform is an announcement to the justice of parole from the utilizable angle. The resocialization of the prisoners is the ultimate aim which the theory of educational penalty pursuits. The parole system has unsubstitutable role to realize the aim. In one hand, the role of parole system to resocialization of prisoners shows the promoting role. It accelerates the process of resocialization of prisoners through encouraging the prisoner reform actively. It makes the processof resiciaiization of prisoners from unwillingness to volunteering gradually. The process of resocialization which the prisoners actively participate is more quickly than that of the prisoners being forced. In the other hand, the role of the parole to resocialization of prisoners is soft landing. This means that it can guide the prisoners to adapt to social life gradually. Penalty individualization is the essence of the educational penalty. It is a basic penalty principle. Parole not only reflects the initial spirit of the penalty individualization but also is the fruit of practice of penalty individualization as a basic system of penalty execution.The adapting condition of parole means that the prisoners can be adapted to parole in what case. The stipulation about the parole condition of each country has the characteristics of assimilating and difference. The formal condition of parole means the basic requirement and premise of which the law stipulates that the prisoners acquire the parole qualification. Parole should only be adapted to these prisoners who are sentenced the penalty of depriving liberty. It is irrational to spread the extend of parole to other kind of penalty such as security measure, the penalty of executing in society and attached penalty .It is unnecessary to adapt the parole to the short-term liberty penalty which is excessively short. In the legislative stipulation about the lowest serving sentence term of parole, there are three models about the lowest serving sentence term of parole of depriving liberty sentence that are the unlimited model, limited model and mixed model. The mixed model which stipulates different serving sentence rate according to the individual case of different prisoner and different offense and stipulates the serving sentence rate from the angle combining the just retribution and personal danger, meanwhile restricts to adapt the parole to excessively short short-term depriving liberty penalty is rational. The stipulation of lowest term serving sentence of parole of life imprisonment includes unlimited model and limited model. The limited model is rational. We should stipulate the lowest serving term sentence of life imprisonment to ten to fifteen years. The essential condition of parole application mainly means a trend that the prisoners can adapt to the society through their act during the imprisonment term and other factors reflecting. The core of the essential condition of parole application is the judgment about the personal danger. We should use the experience of other countries for reference. This means that we should judge the personal danger effectively through the method of drawing up the scientific forecasting that stipulates exceptions about the condition of parole adaptation. But these exceptions are limited by the serving term sentence. We should abolish the exception stipulation of parole in our criminal law because it hasn’t stipulate and limiting condition to the exception. There are few countries have the stipulation prohibiting about parole. We should comprehensively view and rationally analyzethe prohibiting stipulation which our criminal law stipulates. On the standpoint of countries and viewing from the meaning of struggling with the serve offenses in our country, the existence of prohibiting stipulation of parole is rational in some extent. But viewing from the extent of the world and analyzing from the historical trend of the penalty development, the existence of stipulation of parole is irrational. It should be abolished when the criminal law is revised in future. Because of different recognition about the character and attribution of parole power, there are three models about the deciding organizations of parole in abroad legislative stipulation that are the administrative organization deciding model, judicial organization deciding model, administrative officers and judges united deciding model. The parole power is an administrative power. We should use the experience of other countries for reference. That means to establish social correction administrative bureau in the judicial organization. The parole board which attributes to the social correction administrative bureau should hold the parole power. In modern countries of ruling by law, the importance of process has been as same as the entity and even has presented the trend of exceeding the entity. In abroad, many counties have stipulated very perfecting parole process. We should perfect our parole process. We should establish a good and mutual active restricting relationship about the parole right and power, establish pre-parole prisoners person investigation system, establish parole hearing process. The parole process should be stipulated unified by the criminal procedure law.The testing term of parole is a special penalty execution term. It is an inspecting term to test and verify if the personal danger of prisoners have really disappeared. It is the adaptation term of the prisoners returning to society . There are three legislative models about the stipulation of testing term of parole in each country that are the remaining term of sentence doctrine, testing term doctrine and eclecticism. The legislative model of eclecticism which combines the absolute remaining sentence term of fixed-term imprisonment and relative testing term doctrine of life imprisonment is rational. The supervision and protection of parole includes two aspects that are the supervising guide and guiding support. The two aspects combine mutually and supplement each other, constitute mutually the modern and integrate supervision and protection system of parole. We should perfect the stipulation of supervision and protection of parole that means to detail the supervision condition, supplement the stipulation about guiding support to parolee, endow with free adjudication power to the judge in some extent. In addition, it is irrational that the police office supervises the parolee. It should be perfected that the parole board take the duty of supervising and protecting the parolee. We should establish organization system of parolee supervision andprotection with three gradations. We should establish and perfect the protection society of distressed prisoners. The reason of parole revocation generally includes that repeat an offense new crimes during the parole testing term, discover unconvicted crimes and violate the parole condition during the parole testing term. It is irrational that stipulate the evading crimes as the reason of parole revocation. The stipulation about the parole revocation of violating parole condition in our criminal law is too loose. We should stipulate that revoke the parole when the prisoners violate the parole condition with severe details. The Supreme Court of American established the due process of parole revocation in the adjudication of Morrissey V. Brewer case. The process of parole revocation in our country exists irrationality in some extent. We should perfect the process of parole revocation according to the requirement of due process and right protection of parolee. The court revoke the parole according to the judicial process when the prisoners repeat an offense the new crimes or are found the evading crimes. The court should revoke the parole through organizing the hearing meeting when the parolee was accused of violating the law and stipulation by the parole supervision organization. The prisoners should be endowed with deserved right in parole revocation hearing. The process of parole revocation and the related right of prisoners should be stipulated definitely in the criminal procedure law.更多还原