【作者】 宋伟卫；

【导师】 张旭；

【作者基本信息】 吉林大学 ， 刑法学， 2009， 博士

【摘要】 本文对人身危险性在刑法理论体系中的地位和在刑事司法实践中的状态做出具体考察的基础上,认为刑法理论与司法实践之间存在着断裂与背离。由此,对人身危险性在刑法理论中的角色进行重新定位,认为人身危险性具有出罪的功能,也具有从轻及适度从重的量刑功能,在行刑中人身危险性也具有重要作用。正因为人身危险具有这些功能,立法应该对其做出相应的规定,刑事实践中也应该建立科学的预测体系。对人身危险性的关注不仅要立足于刑法学,还要立足于犯罪学,从人身危险性的遏制机制上讲,刑罚遏制是一种被动遏制,而保安处分的遏制是一种主动遏制。刑罚的重心是惩罚,兼顾预防,其逻辑是通过惩罚已然的犯罪,来遏制人身危险性(未然之罪);而保安处分的重心是预防,兼顾惩罚,其逻辑是在犯罪发生之前就开始遏制人身危险性。在刑事程序中,对刑事强制措施的适用以及恢复性司法理念的践行都不能脱离对犯罪人人身危险性的关注。更多还原

【Abstract】 Personal Dangerousness is an essential conception in modern criminal theory. The research on Personal Dangerousness promoted the development of criminal theory effectively. But in China, this kind of research started lately and it is much weak in some aspects. The author writes this article in the context of criminal theory and judicial practice.This article is divided into five sections.In the first section, the author analyses the position of Personal Dangerousness both in criminal theory and in judicial practice. Through this way, we realize that there is severe deviation between Chinese criminal theory and judicial practice about Personal Dangerousness. In present criminal theory, Personal Dangerousness is not attached enough importance, especially in the background of objectivism being dominant. Although Personal Dangerousness is excluded in criminal theory, it affects criminal judicial practice with its tenacious vitality. There is profound theoretical and practical background about the formation of this phenomenon. In criminal theory, the system of constitution of crime is based on the conduct. Although there is appraisal for the offender, but the division of four elements has no independent appraising function. This synthesized appraisal mixed the appraisal for the offender and the conduct. In judicial practice, scholars hold a cautious manner because of the loss of discretionary right of judges and the difficulties of prediction in Personal Dangerousness and the constraints of the degree of the rule of law.In the second section, the writer sets forth on the functions of Personal Dangerousness and points out that Personal Dangerousness is used for conviction and sentencing. About conviction, the author holds the opinion that Personal Dangerousness can only be used as a basis of determining the innocent. And this function must base on criminal conduct. Constrained by the social harmfulness of criminal conduct, Personal Dangerousness can be operated. And this function can reflect the impartiality, humanity and the economy of criminal law. About sentencing, Personal Dangerousness can be used as a basis of punishing more leniently or severely. But, the extension of basis of punishing more severely should be restricted. When Personal Dangerousness is treated as the basis of punishing more leniently, the judges can make their own decisions according to discretionary right. But, when Personal Dangerousness is treated as the basis of punishing more severely, judges must comply with the law strictly. This function is in line with the spirit of criminal law and the aim of penalty, and also can give impetus to the tendency of light penalty. During the execution of penalty, Personal Dangerousness can be used as the basis of classification and parole and commutation. Abeut the amplification of parole, there is another problem need to be focused on, which is the recidivism by the person who has been released on parole. This requests us to take measures to contain Personal Dangerousness in the community. If this problem can not be solved effectively, the offender can commit crime again taking advantage of facilities. And this can be harmful to the neighborhood. So, we must put emphasis on controlling Personal Dangerousness in community correction.In the third section, the author discusses the prediction of Personal Dangerousness. About the way that Personal Dangerousness stipulated in the law, the author holds the opinion that we should take mixed mode. The prediction of Personal Dangerousness must walk towards to the reasonability, and we should establish a scientific prediction system. But,the prediction can’t be absolutely accurate. Except for the prediction system, professional conduct and professional skills of judges also influence the accuracy of the prediction. The premise of the prediction is the existence of an offense. And only judges have the right to do the prediction for Personal Dangerousness and its extent. Predictions made by scholars could be a basis for judges. The measure of prediction is quantitative analysis mixed qualitative analysis, but,quantitative analysis should be the dominant one. Qualitative analysis is an assessment about the existence of Personal Dangerousness. The issue this method solved is if there is Personal Dangerousness for a person. Quantitative analysis is an assessment about the extent of Personal Dangerousness. The issue this method solved is the size of Personal Dangerousness. Qualitative analysis is the basis of the Quantitative analysis. There is no quantitative analysis without qualitative analysis. And quantitative analysis is a fixing analysis based on qualitative analysis. Judges can not understand the extent of Personal Dangerousness without quantitative analysis. The factor of predicting Personal Dangerousness is the circumstance, including personal circumstance and social circumstance that induced personality to real danger. Personal Dangerousness is a result of the combination of offender’s personality and social circumstance. But, those unstable factors should not be studied in criminal law. So, in criminal law, the factors that we can use to judge Personal Dangerousness are natural circumstance and the conduct of the offender.In the fourth section, the author discusses how to contain Personal Dangerousness. In fact, containing Personal Dangerousness is an issue that how to control or eliminate offender’s danger to the society. It seems that this should be an issue studied in criminology. However, to solve this problem, we must base on criminology and criminal law. In the past, scholars held the opinion that penalty is the punishment to the criminal already committed, and Security Measures are used to prevent future crimes. But, this opinion separates functions of punishment and prevention artificially. In fact, both penalty and Security Measures can reflect the function of punishment and prevention. The difference is that penalty places extra emphasis on punishment and Security Measures places extra emphasis on prevention. With regard to contain Personal Dangerousness, penalty is passive, but Security Measures is active. In the last section, the author discusses the issues on the application of Personal Dangerousness in criminal procedure law. Personal Dangerousness is the main basis in taking criminal coercive measures. But the ambiguity of laws leads to the fallacious application of criminal coercive measures. And this is against to the intention of legislators. To change this situation, we should make a clear conception of Personal Dangerousness in criminal procedure law. Personal Dangerousness should be consist of three aspects, which are danger of escape of punishment, danger of hindering case identifying and danger of committing crimes again. Contrary to Personal Dangerousness in criminal law, the extension in procedure law is bigger. But both of them are predictions. Restorative justice focuses on the position of the victim being a subject in criminal legal relationship. It is not upset to traditional criminal philosophy but a balance among retribution, prevention and recovery. Focusing on victims doesn’t mean ignorant of correction. We should balance correction to offenders and compensation for victims. But in the process of implementation restorative justice, we have put more emphasis on victims and ignore the personality of offenders. The main indications are three, which are from the compromise mode, we have put more emphasis on result not process; from implementation conditions, there is a lack of restorative community; from the consequences, and there are no adequate facilities for offenders.更多还原