【作者】 吴富丽；

【导师】 孙谦；

【作者基本信息】 吉林大学 ， 刑法学， 2007， 博士

【摘要】 刑法谦抑是现代刑法的基本理念之一,它蕴含着人权、自由、民主等先进思想,承载着自由、公正、秩序、效率等多重价值。在当前国家安定和社会多元化发展成为世界发展主流的条件下,刑法谦抑对刑法发展的作用日趋显著,它不再仅是“适用于刑法某一部分的原理,而是贯穿全部刑事法领域的基本理念”。作为刑法的基本理念,刑法谦抑不仅应当为刑法的发展和完善提供理论上的启迪与指引,更重要的是要在刑法实践中得到实现,成为刑法实践活动的准则与规范。为此,我们要在不断加强刑法谦抑基本理论问题研究的同时,关注刑法谦抑在实践中的境遇,力求完成刑法谦抑从理念养成到实践遵行的一体实现。本文在对刑法谦抑基本理论进行梳理的基础上,致力于刑法谦抑实现问题的探究,通过对刑事政策、刑法立法、司法、刑罚执行等实践领域的谦抑性审视,提出了刑法谦抑从理念培育到原则确立再到制度完善的实现路径,期望能对刑法谦抑理论与实践的发展有所助益。更多还原

【Abstract】 The concept of jurisprudence is the essence of law, and it embodies the basic spirit and value of the law. The modesty and restraint of criminal law has become one of the basic concepts of criminal law in modern society, aiming at protecting human rights, defending freedom, keeping orders, maintaining justice, etc. As a basic concept in criminal law, the modesty and restraint of criminal law should fully play its role in guiding and restraining the development of criminal law, and it must transform the criminal law from abstract conception to its actual implementation. Only by doing so can the theory on modesty and restraint of criminal law be transformed into criminal law’s principle, system and standard, which will finally lead to the practical implementation. The main purpose of this dissertation is to further discuss the practical implementation of the modesty and restraint of criminal law on the basis of the theory on the modesty and restraint of criminal law.In Chapter One, the conception, basis and function, of the modesty and restraint of criminal law, are organized and discussed based on the context of the rule by law. The previous conception of the modesty and restraint of criminal law is illustrated, and by a combination of intension and extension, the attribute of the modesty and restraint of criminal law is described as modesty and humility in criminal law’s concept, principle, system, standardization, initiation of adjustment and control power, determination of adjustment and control scope, selection of adjustment and control method, and the operation of criminal law. This description originated from the Renaissance Movement and the Humanism Movement. The theoretical basis of the modesty and restraint of criminal law lies in the human rights doctrines, democratic theory, and the rule by law. The realization of modest and restrained criminal law is based on the prosperity of commodity economy, the establishment of democratic system, and the emergence of civilized society. As a basic conception in criminal law, the modesty and restraint of criminal law should guide, restrain, integrate, evaluate and evolve criminal law in its operation and development.In Chapter Two, the connotation and significance of the realization of the modesty and restraint of criminal law are illustrated, and a practicable analysis of the realization of the modesty and restraint of criminal law in China is made on the basis of China’s current situation. The final purpose for the development of the modesty and restraint of criminal law is the embodiment of criminal law’s modesty and restraint in the operation of criminal law from ideas to practice. The realization of the modesty and restraint of criminal law means the acceptance of criminal law by theorists, social public and the whole nation, and it also means that the criminal law will be abided by the public, whose modesty and restraint should be found in the principle, system, and standard, of the criminal law. There exists a great importance for the realization of the modesty and restraint of criminal law, in which some obsolete and backward views are discarded, freedom and human rights are respected, and the criminal cases will be principally manipulated by the rule of law. In China, the multi-dimensional social development lays a good foundation for the realization of the modesty and restraint of criminal law, the policy of rule by law creates political conditions for the realization, and the construction of a harmonious society provides a promising prospect for the realization. That is to say, China has owned the necessary conditions for the realization of the modesty and restraint of criminal law, which is not merely a blueprint, but a realistic systematic project.In Chapter Three, the detailed conception for the modesty and restraint of criminal policy is put forward on the basis of the analyses of the current criminal policies and the modesty and restraint of criminal law. By a static analysis of China’s criminal policy system, such as social security comprehensive management, a combination of severe punishment and reform, etc., it is concluded that China’s criminal law focuses on the pursuit of order and efficiency, but the pursuit of freedom and justice is not put in the first place, which demonstrates the incompleteness and imperfection of China’s criminal law. By a dynamic analysis of China’s criminal policy system, because of the deficiency in its criminal policy system, the decline of the anticipated value, and the slow-down of its criminal law development, it is concluded that China’s criminal policy still focuses on punishment as a major criminal policy, but prevention is put in the second place, which goes against the modesty and restraint of criminal law. Therefore, firstly, the concept of modesty and restraint should be embedded into the main body of criminal policy by cultivating a rational opinion on criminal cases, by stressing human rights consciousness, and by developing tolerant spirit; secondly, the modesty and restraint of criminal law should be set up as the basic principle in the criminal policy, in which the pursuit of modesty and restrain of criminal law should be detected and the modesty and pursuit should be followed in the operation of criminal law; finally, the implementation of the modesty and constraint of criminal law should be guaranteed by perfecting the criminal policy decision-making system, by establishing a scientific system of evaluation for criminal policy, and by building a supervision system for criminal policy.In Chapter Four, a basic requirement in the modesty and restraint for crime determination and criminal punishment is illustrated, an analysis is made of the modesty and restraint in crime determination and criminal punishment, and the general outline is made for China’s modesty and restraint of criminal law construction. The crime scope applicable to the modesty and restraint should be the necessary and minimal scope of crime, while the crime scope defined in China’s criminal law is comparatively small with some deficiencies, which is far away from the requirement in the modesty and restraint of criminal law. In China’s criminal law, the scope of crime is comparatively small, the type of punishment is not appropriate, the scope of punishment is too much expanded, the death penalty is overdone, the criminal punishment is over-emphasized, and so on so forth. In China, to make real the modesty and restraint of criminal law construction, the concept of the modesty and restraint of criminal law should be firstly cultivated among law-makers; secondly, the basic principle of modesty and restraint should be determined, by which the making of criminal law should abide; finally, a system for the making of criminal law should be set up to perfect the law-making system, i.e. democracy, openness and supervision in law-making. To put it in detail, the crime scope should be determined according to both criminal behavior and non-criminal behavior, a rigidity mechanism in crime should be strengthened, the criminal punishment should be adjusted according to the changes of situation, the structure of punishment should be changed to lighter punishment, and a replacement system should be adopted to promote the system of non-criminal punishment.In Chapter Five, the basic requirements in the modesty and restraint of jurisdiction and criminal punishment are illustrated, an analysis is made of the modesty and restraint of China’s criminal jurisdiction and criminal punishment execution, and finally a basic outline is put forward for the modesty and restraint of China’s criminal jurisdiction and criminal punishment execution. The modesty and restraint of jurisdiction is the concrete embodiment of modesty and restraint of criminal law in criminal jurisdiction, and it is made up of two respects: the modesty and restraint of the operation of criminal law, and the modesty and restraint of crime confirmation. In particular, the former includes the modesty and restraint of crime determination, of punishment determination, and of jurisdiction interpretation. In China, the operation of criminal jurisdiction is based on the justice of jurisdiction and is on its way to the modesty and humanism of jurisdiction, but there exist some deficient developmental trends, which are far away from the modesty and restraint of jurisdiction, such as trends towards severe crime determination, towards severe penalty, towards hard jurisdiction terms, towards severe crime determination for suspected criminals, etc. To make real the modesty and restraint of jurisdiction in China, first of all, the concept of modesty and restraint of jurisdiction should be cultivated by popularizing jurisdictional rationality, jurisdictional lenience and jurisdictional humanism; secondly, by reforming jurisdictional system jurisdiction independence should be realized to create advantageous environment and conditions for the realization of the modesty and restraint of jurisdiction; finally, non-crime behavior, non-criminal penalty and lighter punishment should be guaranteed by perfecting the criminal jurisdiction system. The modesty and restraint of criminal execution is the basic standpoint of criminal law in operation, which consists of justice in execution, humanistic execution and economical execution. Since the foundation of People’s Republic of China, the criminal law and system have developed, to a degree, to meet partial requirement in the modesty and restraint of criminal law in that humanistic execution and human rights consciousness are improved. However, there still exists some misconduct concerning the modesty and restraint of criminal execution, such as bad execution of light punishment and probation, bad execution operation, over-sized imprisonment, costly execution, low openness of criminal execution, low protection of human rights, etc. To make real the modesty and restraint of criminal execution, first of all, the concept of modesty and restraint of execution should be taught to the working staff so that they may get rid of the backward concept in execution and improve their consciousness of human rights protection; secondly, a supportive system should be provided for the modesty and restraint of criminal execution by means of socialized execution, humanistic execution and educational system for execution.更多还原