德國保安處分制度研究
發(fā)布時間：2019-06-04 09:00
【摘要】：李斯特于1882年在《刑法中的目的觀念》一文中第一次提出“保安處分措施”的設(shè)想,1933年《慣犯法》將“保安處分措施”正式寫入刑法,發(fā)展至今,德國保安處分制度與傳統(tǒng)刑罰手段并存于德國刑事處罰體系之中,形成了德國刑罰體系的“雙軌制”。 以賓丁為代表的德國刑法古典學(xué)派所堅持的純粹“報應(yīng)性”的刑罰在面對不斷惡化的社會治安局面時的束手無策恰恰證明了以李斯特為代表的德國刑法現(xiàn)代學(xué)派所倡導(dǎo)的“目的刑罰”的必要性與合理性�！澳康男塘P”理論在德國刑法學(xué)界所獲得的廣泛的認(rèn)可為保安處分措施寫入刑法以及保安處分制度的正式建立奠定了理論基礎(chǔ),提供了正當(dāng)性證明。保安處分制度與傳統(tǒng)的刑罰措施,在價值定位、具體制度設(shè)置以及適用所追求的目標(biāo)等方面存在著巨大的差異,在一般對刑罰措施并不存在較大的正當(dāng)性質(zhì)疑,但同時對德國保安處分制度存在較多的“侵犯人權(quán)”詬病的背景下,對保安處分制度在刑法理論上進(jìn)行論證的目的就在于使保安處分制度不是以刑罰的定位,而是以保安處分的角度獲得自身的正當(dāng)性。 德國保安處分制度主要包括《德國刑法典》所規(guī)定的六種保安處分措施。在保安處分制度所追求的從對具體的犯罪有效預(yù)防的角度有力地與犯罪行為作斗爭的總體目標(biāo)的指導(dǎo)下,各個具體的保安處分措施在適用的過程中追求側(cè)重點(diǎn)有所不同的刑事政策目的。但是,六種保安處分措施預(yù)防犯罪的刑事政策目的的實(shí)現(xiàn)均是以“行為人”為核心,在對其“人身危險性”進(jìn)行分析確定的基礎(chǔ)之上由法院對其判處與其人身危險性及其程度相適應(yīng)的保安處分措施。在法院對行為人判處保安處分措施,原則上應(yīng)通過完全的法院審判的程序。在對行為人最終確定判處保安處分之前,法院需要絕對地確信行為人的個人情況已經(jīng)完全地滿足刑法典所歸定的形式上以及實(shí)質(zhì)上的條件。在形式與實(shí)質(zhì)條件之間,存在著決定與被決定的關(guān)系,即實(shí)質(zhì)條件決定形式條件,而形式條件的確定實(shí)際上是對實(shí)質(zhì)條件存在的確證。不管法院對行為人判處何種保安處分措施,均需具備行為人具有相當(dāng)程度的人身危險性,即行為人在將來很有可能繼續(xù)犯罪,危害社會的實(shí)質(zhì)條件在整個保安處分措施判處以及執(zhí)行的過程中,行為人及其人身危險性始終是法院以及執(zhí)行機(jī)關(guān)所應(yīng)關(guān)注的重中之重。在執(zhí)行過程中,如果行為人人身危險性消除或者在程度上有明顯的降低,則法院應(yīng)決定將對行為人判處的保安處分措施緩期執(zhí)行或者是提前宣告執(zhí)行結(jié)束。由此可見,不管是對行為人判處保安處分措施,對其具體執(zhí)行保安處分措施,還是決定不再對其執(zhí)行保安處分措施,均系由行為人的人身危險性所決定。同時,因?yàn)樾袨槿巳松砦ｋU性很大程度上指的是行為人再次犯罪的社會危害性,所以在規(guī)定、判處及執(zhí)行保安處分措施的全過程中,或者說整個保安處分制度的內(nèi)核就是行為人個人權(quán)益的剝奪與社會公共利益的保護(hù)之間的衡量與最終的平衡,保安處分制度適用的理想狀態(tài)也就應(yīng)該是,以對個人權(quán)益的最小的侵害,來達(dá)到對社會公共利益保護(hù)的目的。
[Abstract]:In 1882, the idea of "measures of security measures" was put forward in the article" The concept of the purpose of security in criminal law ". In 1933, it was the first time to put forward the idea of the measure of security measures". In 1933, the criminal law was formally written into the criminal law. The system of security disposition in Germany and the traditional penalty means were co-exist in the German criminal punishment system. The "double-track system" of the German penal system was formed. In the face of the deteriorating social security situation, the "pure retribution" penalty of the German criminal law classical school, which is represented by Bain, has proved the necessity and the combination of "the purpose penalty" advocated by the modern school of the German criminal law, which is the representative of Liszt. The broad recognition of the theory of "purpose penalty" in German criminal law has laid a theoretical foundation for the formal establishment of the security measures to write to the criminal law and the security disposal system, and provided the legitimacy. It is proved that the security disposition system and the traditional penalty measures have great differences in the aspects of value orientation, specific system setting and the target of the application. In general, the punishment measures do not have a great legitimacy. Doubt, but at the same time, in the background of the more "human rights violation" of the German security disposition system, the purpose of the security disposition system in the criminal law theory is to make the security disposal system not the position of the punishment, but to obtain the right of self in the perspective of the security disposition The German security sanctions regime mainly includes the six guarantees provided for in the German Penal Code Under the guidance of the overall objective of the effective prevention of the specific crime from the perspective of the effective prevention of the specific crime, the specific security measures are different in the application process. The objective of the policy is that, however, the achievement of the criminal policy objectives of the six types of security measures in crime prevention is at the core of the "doer" and, on the basis of the analysis and determination of its "personal risk", the court is sentenced to a protection commensurate with its personal risk and its degree (b) The measures to be taken by the Security Council, in principle, through a full court, in the case of the court's imposition of security measures on the perpetrator The procedure of the trial. Before the final determination of the perpetrator of the security disposition, the court needs to be absolutely certain that the individual's personal situation has fully met the form of the criminal code, as well as the facts The condition of a qualitative condition. There is a relationship between the form and the substance, that is, the condition of the form of the substance, and the determination of the form condition is actually a real condition. The existence of a confirmation that, regardless of the security measures imposed on the perpetrator by the court, the perpetrator is subject to a considerable degree of physical danger, that is, the perpetrator is likely to continue to commit an offence in the future and that the substantive conditions of the society are to be imposed on and held by the entire security disciplinary measure In the course of the line, the risk of the actor and the person is always the subject of the court and the executive organ. In the course of implementation, if the person's personal risk is removed or there is a significant reduction in the degree, the court shall decide to slow down the security measures to be imposed on the perpetrator or to be in advance On the conclusion of the implementation, it can be seen that, in spite of the imposition of security measures on the perpetrator, the specific implementation of the security measures, or the decision to stop the enforcement of the security measures, it is the person's personal risk At the same time, because of the danger of the person's physical danger, it is the social harmfulness of the perpetrator to commit the crime again, so it is stipulated, sentenced and enforced by the security measures In the whole process, or the core of the whole security disposition system is the measurement and the final balance between the deprivation of the individual's rights and the protection of the public interest, the ideal state applicable to the security disposal system should be, in order to protect the individual's rights and interests The minimum harm to the public interest.
【學(xué)位授予單位】：湖南師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D951.6;DD914
本文編號：2492613
[Abstract]:In 1882, the idea of "measures of security measures" was put forward in the article" The concept of the purpose of security in criminal law ". In 1933, it was the first time to put forward the idea of the measure of security measures". In 1933, the criminal law was formally written into the criminal law. The system of security disposition in Germany and the traditional penalty means were co-exist in the German criminal punishment system. The "double-track system" of the German penal system was formed. In the face of the deteriorating social security situation, the "pure retribution" penalty of the German criminal law classical school, which is represented by Bain, has proved the necessity and the combination of "the purpose penalty" advocated by the modern school of the German criminal law, which is the representative of Liszt. The broad recognition of the theory of "purpose penalty" in German criminal law has laid a theoretical foundation for the formal establishment of the security measures to write to the criminal law and the security disposal system, and provided the legitimacy. It is proved that the security disposition system and the traditional penalty measures have great differences in the aspects of value orientation, specific system setting and the target of the application. In general, the punishment measures do not have a great legitimacy. Doubt, but at the same time, in the background of the more "human rights violation" of the German security disposition system, the purpose of the security disposition system in the criminal law theory is to make the security disposal system not the position of the punishment, but to obtain the right of self in the perspective of the security disposition The German security sanctions regime mainly includes the six guarantees provided for in the German Penal Code Under the guidance of the overall objective of the effective prevention of the specific crime from the perspective of the effective prevention of the specific crime, the specific security measures are different in the application process. The objective of the policy is that, however, the achievement of the criminal policy objectives of the six types of security measures in crime prevention is at the core of the "doer" and, on the basis of the analysis and determination of its "personal risk", the court is sentenced to a protection commensurate with its personal risk and its degree (b) The measures to be taken by the Security Council, in principle, through a full court, in the case of the court's imposition of security measures on the perpetrator The procedure of the trial. Before the final determination of the perpetrator of the security disposition, the court needs to be absolutely certain that the individual's personal situation has fully met the form of the criminal code, as well as the facts The condition of a qualitative condition. There is a relationship between the form and the substance, that is, the condition of the form of the substance, and the determination of the form condition is actually a real condition. The existence of a confirmation that, regardless of the security measures imposed on the perpetrator by the court, the perpetrator is subject to a considerable degree of physical danger, that is, the perpetrator is likely to continue to commit an offence in the future and that the substantive conditions of the society are to be imposed on and held by the entire security disciplinary measure In the course of the line, the risk of the actor and the person is always the subject of the court and the executive organ. In the course of implementation, if the person's personal risk is removed or there is a significant reduction in the degree, the court shall decide to slow down the security measures to be imposed on the perpetrator or to be in advance On the conclusion of the implementation, it can be seen that, in spite of the imposition of security measures on the perpetrator, the specific implementation of the security measures, or the decision to stop the enforcement of the security measures, it is the person's personal risk At the same time, because of the danger of the person's physical danger, it is the social harmfulness of the perpetrator to commit the crime again, so it is stipulated, sentenced and enforced by the security measures In the whole process, or the core of the whole security disposition system is the measurement and the final balance between the deprivation of the individual's rights and the protection of the public interest, the ideal state applicable to the security disposal system should be, in order to protect the individual's rights and interests The minimum harm to the public interest.
【學(xué)位授予單位】：湖南師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D951.6;DD914
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 張雄敬;論刑法中的禁止令[D];華南理工大學(xué);2013年
，本文編號：2492613
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