【作者】 杨金玉；

【导师】 李洁；

【作者基本信息】 吉林大学 ， 刑法学， 2009， 博士

【摘要】 刑罚是一个具有独特结构和运行规律的复杂规则体系,每一种刑罚也都具有自己的成立要素。对这种规则的认识,必然需要适当的认识工具,这就不可避免地提出一个论题,与犯罪的认识工具即犯罪构成相对应,刑罚作为一种规则体系,对每一种刑罚规则的认识,也需要一个认识的理性工具,即刑罚构成。刑罚内部构成要素间关系和地位的变化,直接外化为报应、功利和折衷理论的形成和争鸣,直接决定立法者意图和公民的法情感以及犯罪人对国家强制措施的认识,更能在某种程度上决定该社会的整体法治形态。长期以来,相对于犯罪构成研究的百花齐放,刑罚构成的研究还门前冷落,而这种状况显然制约着刑罚理论的进一步发展。本文通过对俄罗斯联邦刑罚制度发展作出全面的回顾性分析,得出了用社会学方法研究和定义刑罚概念具有一定的合理性和先进性。应用词源学、语义学、心理学和宗教历史的方法完整解析了俄罗斯联邦刑罚本质,使刑罚本质研究进入到更深入、更细致、更科学的层面。本文还全面解读了俄罗斯联邦刑罚体系内容、特点,尤其是新的刑罚构成理论。指出了刑罚的主体、客体、主观方面和客观方面是刑罚构成的四要件。用构成体系的方法来分析刑罚并揭示刑罚内部构成要素与刑罚功能、目的和价值的关系,是一种全新的学术尝试,也是对刑罚进行全面、科学认知的必要途径。建立完整、系统的刑罚构成学说,不仅是方法论的变革,而且具有重要的实践意义。本文还在研究俄罗斯刑罚基本制度的基础上,提出完善我国刑罚基本制度的改革和完善建议。更多还原

【Abstract】 The legal thoughts of Soviet Union have made a profound impact on the development of Law Sciences in China. Until now, some key concepts and approaches in China’s Criminal Law System are still following the Soviet Union’s pattern. However, at present, Russia is seeking a new approach of“building a country under the rule of law”, and dramatic changes have taken place in“Russian Federal Criminal Code”covering all the aspects of legal thoughts, legislation technique, interests protection, implementation and so on. Its theoretical approach is corresponding to the transformation in social structure. Nowadays China is also faced up with the legal transformation in strengthening social autonomy and improving citizen’s individual rights. Although the transformation of“Rule by Law”, particularly, the transformation of“Criminal Law”in China, boasts difference with the transformation process in Russian Federation, they certainly share some common points. Thus intensifying the studies on the criminal law of Russian Federation will surely offer us stimulating inspiration and beneficial reference to perfect the basic system of the Criminal Law in China.The aim of this paper is to find out a scientific legal trend which conforms to China’s situation and integrates with the international principles, and covert the traditional and regulated research pattern on the basic system of penalty, through the elaboration on the essence, composition and system of Russian Federation’s penalty, and the discussion on the inward relationship and interaction between the essence, composition, purpose and the function of Russian Federation’s penalty.The Russian Federation’s penalty has witnessed a long journey in its theoretical development. Before“The October Revolution”, during the period of Soviet Union and even after the disintegration of Russia, so many jurists have made systematic analysis on the penalty system, which presented such prosperity of flourishing thoughts which derived from the same origin. These documents provide the foundation for deepening the understanding and analyzing of the interaction among the essence, composition, purpose as well as the function of the penalty.The legislation concept of Russian Federation’s penalty could be divided into three groups according to its characters: essence character, content character, and form character. These three groups clearly define the concept of penalty, which enables the research of the penalty concept achieve a high level. Essentially, the concept of Russian Federation’s penalty is quite rational and advanced in terms of the technique of legislation.For the research on the essence of penalty, the Russian scholars didn’t restrain on the study of compulsion, punishment, prevention and retribution, such traditional ways to understand the essence of penalty. Etymology, semantics, psychology, religion and history of penalty are involved in the disputes of“punishment”,“compulsion”,“pain”,“condemnation”,“penalty”,“criminal punishment”and“criminal penalty”, which ensure the research on the essence of penalty more intensified, more specific and more scientific.Influenced by the dominant concept which emphasizes the“punishment”——the essence of“penalty”, the Russian scholars have also noticed that due attention should be paid to the complexity of the penalty mechanism when defining the essence of penalty. The penalty, with various patterns and complicated forms, not only includes the enforcement and punishment, but also covers the mental and psychological characters of the criminal after he is penalized, that is, the criminal does get the penalty from the country, which is a counteraction to his criminal behavior.The Russian scholars have always taken the penalty as an integrated system for research, and such complete system is definitely composed by different elements. The subject,object, subjective aspect and objective aspect are the four composing elements of the penalty. Even in the Russian Federation, adopting the“composing system method”to analyze and reveal the relationship among the composing element, function, purpose, and value of penalty, is a completely new trial in the academic research. To establish a complete and systematic penalty composing theory, is not just the reform about the methodology, but also a necessary approach to have a complete and scientific cognition of the penalty, which boasts very important practical significance.The legislation of Russian Federation’s penalty is constituted on the basis of science, it didn’t follow the dogmatic approach to conduct the research, while improved the legislation technique. Therefore, the penalty is endowed with standardized legal features. At this point, it is the general composition of penalty, and is also the scientific standard to analyze any of its composing elements. All the object, subject, objective aspect and subjective aspect depend on the form of the penalty under this legal system. In this system, any specific penalty is different from other penalties. The general composition of penalty is a scientific abstraction and is static. The interactive influence of all the elements is this system begins from the discretion and enforcement of the penalty. Just from this point, penalty emerges as a system.There are two independent views on the definition of penalty: norm theory and socialology theory. Each definition is consistent with its analyzing angle. The study on the composition of penalty provides a new angle for the scientific definition of penalty. Penalty, as the whole of its composing elements, is not the subject of penalty doctrine, but of the criminal sociology, and is regarded as a legal system within the scope. This penalty definition is the origin of conceptual annotation. It refines the scope of the law, and offers the precondition for eliminating the incoordination in practice. To distinguish these two methods could avoid the definition confusion and prevent the dogmatic definition as well.Of course, either the comparative law study or the foreign law study, should get back to the purpose of perfecting the legal system in China. Besides the study on the essence,composition and basic theory of Russian penalty, the author has made a personal research on the concept, essence and composition of the penalty in China. If the theoretical significance of this paper is to provide the relevant evidence and updating views to the study of Russian penalty system, provide conceptual basis for study on relevant basic system of Chinese penalty, and inspire the systematic thinking on the basic system of Chinese penalty among the scholars, thus some opinions and legislation suggestions from the author could serve as the reference for the related legal institutions and legislation organs, and the pre-analysis on the establishment and the transformation trend allowance of the criminology-preventing policy could be seen as the practical significance. If it is supposed that, currently, the study on basic system of Chinese penalty is still maintaining at the macro, correlated and interactive level, and focusing on the purpose, value and function of the penalty, and then this paper would create a new prospect which leads the study on the basic system of penalty into a micro, substantial and essential level, and emphasizes on the elements, framework and intensive logical relationship of the penalty system. The author has tried to liberate the penalty thought from the inappropriate concept, approach and system, and get rid of the shackles of subjectivism and metaphysics.更多还原