【作者】 张珊珊；

【导师】 李洁；

【作者基本信息】 吉林大学 ， 刑法学， 2009， 博士

【摘要】 当今世界刑罚发展的基本趋势之一就是刑罚的轻缓化。资格刑作为现代刑罚体系的一个不可或缺的构成要素,因其独有的轻缓而有效的刑罚理性特征而逐渐被提升到现代刑罚的理论研究舞台之上。科学的设置资格刑,对于完善我国刑罚体系和实现刑罚现代化有着极其重要的意义。本文笔者通过借鉴和比较世界其他国家和地区的刑罚规定中的资格刑设置,并通过对资格刑所特有的报应和预防的刑罚特征的分析,寻找科学合理的资格刑的制刑根据和配刑原则。文中对以往学界的有关观点做了归类分析,并提出了笔者对于资格刑的合理设置的基本设想。而后从资格刑的设置根据基础出发,分析我国刑罚体系中的资格刑设置,指出其中的缺憾和不足,并探索我国刑法中资格刑的内容、适用对象、适用范围等方面的科学设置,提出了对我国资格刑的立法设置的完善建议,建立新的资格刑研究的分类方法,以期构建设置科学、层次合理的资格刑体系,使其能够更好发挥自身独特的功能和效用,成为现代刑罚体系中的重要组成要素。更多还原

【Abstract】 Recently one of the basic trends of the development of penalty in the world is to be mitigated. The qualification penalty has been lifted onto the modern stage of the penalty because of its mitigated and effective. As a penalty with long history, how can the qualification penalty exert its unique characteristics in modern penalty system and what kind of setting mode can give prominence to its scientific penalty utility are the two most important question of qualification penalty.Since we research on the setting of the qualification penalty, we should explore and conclude the rational basis, the existing foundation, the status and role in the penalty system and the basic direction of the setting of the qualification penalty systematically. And then, we come to study on the setting method of the qualification penalty in our country. How to make it be more effective and more functional and contribute to the improvement of our scientific penalty system is the focal point in the research. The qualification penalty has various types. And its specific manifestation varies greatly in different countries and different historical period. If we want to set a scientific qualification penalty system under a unified standard and to make it pleased the modern rational penalty theory and play its own inherent value contemporarily, we should study and test on many aspects of the qualification penalty. And to make this penalty play a positive role in promoting de need for qualified criminal system, we need learn and compare a lot of relative data.The previous study on qualification penalty is all about the history, the development, the advantages and the comparison with foreign setting. They just point out the drawbacks and modified them. They seldom talk about the basic principle and direction of the setting of qualification penalty. In addition, the current information in regard to our qualifications punishment setting, usually lists the existing inadequacy all together, and then amended them one by one. However, here we believe that this kind of method is lack of ration. Among all the inadequacy, there is drawbacks to be corrected and shortage to be improved. If we list all of them together, we cannot found any regulation and coherence in it and we cannot set a rational-settled, clear-regulated new qualification penalty system. Therefore, I boldly try and look forward to classify the setting of qualification penalty into content and appliance, according to the basic setting principles under the criminal law. And then we can discuss the setting of additional parts and improved parts separately, which is facilitating in learning and discussion.The structure of the article is as followed: the first part of the article is the starting point of the discussion. It is bedding for the theoretical basis. In this part, the author talks about the basic elements of qualification penalty, such as the definition, the structure, the classification and the characteristics. And this part is the necessary foundation and the theoretical premise of the qualification penalty setting.The second part is one of the most important sections of the article. This part focused on the rational basis for setting of qualifications penalty. The author starts from the value of qualifications in human life of new period, and try to find the support in theory for the setting. Combined the theoretical basis of penalty setting, the author gives a detailed analysis of retribution and prevention basis, and then get the conclusion that the basis of setting the qualification penalty is the effective prevention and equitable retribution. At the same time, the author analyzes the unique advantages of qualification penalty under the modern values of penalty and point out that the economic and humanitarian characteristics can also give the theoretical support for setting the qualification penalty.Inheriting the previous parts, the third part of the article is about how to set the qualification penalty according to the basis of penalty setting. It is about the content choosing and the appliance setting, which concludes the object, the range and the style of appliance. The object is offenders that the qualification penalty applied. The range is the crimes that the qualification penalty applied. And the style, mainly the style in legislation, concludes the different styles of appliance because of their different status regulated in criminal law and the different styles because of the special characteristic of content. The research of these questions can give a full basis for the following analysis of the setting of qualification penalty in our country.The fourth part of the article comes back to the analysis of the setting of qualification penalty in our country. Because the generalized criminal law concludes the penal code, the other single criminal statutes and the criminal code in non-criminal legal norms, the qualification penalty in our criminal law system not only refers to the qualification penalty, but also concludes qualification punishment in other non-criminal legal norms. In this part, the author analyzes the specific issues basis on the two different objects. First of all, the first section is about the qualification penalty in penal code. Usually we believe there are two qualification penalties in our penal code: Deprivation of political rights and Deportation. The author point out the drawbacks and inadequacy of the content and appliance of the two penalties according the theoretical basic principle that has tested above. Secondly, the author analyzes the qualification punishment in other non-criminal legal norms which is the practice basis and has important reference value to the setting of qualification penalty in out country. And in the same way, the author point out the advantages, the drawbacks and the inadequacy of the content and appliance of these punishments according the theoretical basic principle that has tested above.The last part of the article is the vision to the improvement of our qualification penalty setting. In this part, the author also analyzes the vision to the content and the appliance of the setting. First of all, the content part can be divided into the amended part and the addition part. In the section of the amending of the existing content in our penal code, the author points out the drawbacks and unreasonable parts in it and revised them. In the section of the addition to the existing content in our penal code, the author references to the setting in foreign country and suggests to add some contents according to the need against offence and the legislation statue quo. Secondly, the improvement of the appliance setting of qualification penalty includes the correct choosing of the object, the offence and the style. The author points out the drawbacks and revises them. The scientific and targetable appliance is the need to full play the function. The research on qualification penalty concerns many specific questions. And I only share a very small part of them. I dare not say I have got any innovation but I have tried to get some acquisition in the questions followed: Firstly, I try to find the basis for the setting of qualification penalty under the direction of retribution and prevention. Secondly, I try to find the most scientific way of the objects, the offences and the styles of the appliance to the qualification penalty. Thirdly, according to the conclusion above, we judge and test the current qualification penalty setting and reset its contents and appliance by adding and revising, and look forward to build a new qualification penalty system that can fully play its advantages and please the demand of criminal value.In particular, the qualification penalty can be divided into two parts: the qualification penalty to people and the qualification penalty to corporate. The qualification penalty to people can be divided into qualification penalty to common people and the qualification penalty to specific people. First of all, although the qualification penalty can only be used to those who have the qualification, all the common people have the possibility to own that qualification at least. So we say that the object of most qualification penalty is the common people. According to their different contents, qualification penalty to common people includes: Deprivation of the right to vote and stand for election; deprivation of public career qualifications, including the role of national civil rights and the right to served as leadership positions in the state-owned enterprises, institutions and people’s organizations, and the deprivation of engaging in some sort of career and employment or business qualifications. On the other part, the qualification penalty to specific people includes: Deportation of the foreigners and Deprivation of the rank to the military which regulated in relative criminal regulations. As for the qualification penalty to corporate, it includes:Restricted from doing any business activities; Business rectification and Criminal bankruptcy.As for the appliance of qualification penalty, the author gives such suggestions: Firstly, about the range of appliance, the author suggests that the qualification penalty used to felony should be restricted by the relative type of the offence. Here we deprive the qualification of vote and the qualification of public career. And we deprive the public career qualification of the offenders who commit career crime. And we deprive the qualification of engaging in some sort of career and employment or business qualifications of the offenders when they commit relative crime with their qualifications. We deprive or restrict the qualification of corporate when they commit crimes. As for the object of appliance, the author believes that it is not reasonable to take the offenders who are sentenced to death as the object of the qualification penalty. And the minors should not be the object either. At the same time, the corporate can be set as the object of the qualification penalty. Then, as for the style of appliance, the author promotes that we should discard the old way of deprivation which once the offender was sentenced to deprive his political qualification, all the four contents listed under the penalty of political qualification were totally deprived together. We should set a way that the judge can choose one or more contents listed under a qualification penalty according to his own judge and the facts of the crime.更多还原