社區(qū)矯正的理論基礎(chǔ)及制度構(gòu)建
發(fā)布時(shí)間：2018-08-21 10:51
【摘要】： 縱觀整個(gè)刑法發(fā)展史不難發(fā)現(xiàn):由嚴(yán)酷走向緩和,是刑罰發(fā)展的整體趨勢(shì)。與之相對(duì)應(yīng),刑罰的執(zhí)行亦經(jīng)歷了一個(gè)由非社會(huì)化到社會(huì)化、由封閉走向開放的過(guò)程。 社區(qū)矯正代表著世界范圍內(nèi)行刑發(fā)展的潮流與趨勢(shì)。為此,2003年7月,我國(guó)已在部分地區(qū)先期開展了社區(qū)矯正試點(diǎn)工作。作為不同于傳統(tǒng)重刑主義的新型行刑制度——社區(qū)矯正制度在我國(guó)才剛剛起步,無(wú)論是在刑法理論上還是在司法實(shí)踐中,都沒(méi)有形成一套成熟的模式,迫切需要進(jìn)行深入的理論研究和對(duì)可操作性的實(shí)踐模式進(jìn)行探索。作為一項(xiàng)探索性研究,本文以法學(xué)、社會(huì)學(xué)等多學(xué)科知識(shí)為指導(dǎo),介紹了社區(qū)矯正的思想演進(jìn)、理論價(jià)值及我國(guó)開展社區(qū)矯正的社會(huì)基礎(chǔ)等,并對(duì)各地正在試行的社區(qū)矯正模式進(jìn)行了評(píng)析,最后提出了構(gòu)建適合我國(guó)國(guó)情的新型社區(qū)矯正模式的設(shè)想。具體而言,除去引言和結(jié)語(yǔ)部分,筆者試圖從以下四方面來(lái)進(jìn)行本文的寫作: 第一部分:導(dǎo)論。該部分首先從2003年7月10日,兩部?jī)稍郝?lián)合下發(fā)的《關(guān)于開展社區(qū)矯正試點(diǎn)工作的通知》著手,提出問(wèn)題。進(jìn)而運(yùn)用歷史研究及比較研究的方法,詳細(xì)論述了開展社區(qū)矯正的理論依據(jù)。 在該部分,本文重點(diǎn)從七個(gè)的不同視角對(duì)開展社區(qū)矯正的理論依據(jù)進(jìn)行了詳盡的理論分析。在對(duì)不同視角的理論依據(jù)進(jìn)行闡述分析的過(guò)程中,不難得出:社區(qū)矯正制度的興起是刑罰發(fā)展的必然結(jié)果,是人們?cè)谥匦聦徱曅塘P與行刑經(jīng)濟(jì)化原則的矛盾沖突之后所產(chǎn)生的一種全新的刑罰理念。它的存續(xù)正是基于以上多種不同理論的交叉支撐,它產(chǎn)生的理論背景是教育刑理論的興起,是以人格矯正為前提、以使犯罪人復(fù)歸社會(huì)為目標(biāo),集中體現(xiàn)著行刑的人道價(jià)值和刑罰的謙抑思想,同時(shí)又體現(xiàn)出行刑經(jīng)濟(jì)原則和刑事補(bǔ)償理論,可以說(shuō)是復(fù)歸理論的深層展開和行刑社會(huì)化理論的必然歸宿。 第二部分:論述社區(qū)矯正在我國(guó)實(shí)施的現(xiàn)實(shí)必要性和學(xué)術(shù)可能性。 社區(qū)矯正所蘊(yùn)涵的巨大價(jià)值是毋庸置疑的,然而,隨即而來(lái)的一個(gè)重要的問(wèn)題是,這種源自西方發(fā)達(dá)國(guó)家的行刑模式有無(wú)在我國(guó)實(shí)施的必要性呢?對(duì)此,筆者認(rèn)為社區(qū)矯正弱化了犯罪人的“標(biāo)簽效應(yīng)”,體現(xiàn)了以人為本的人本主義精神,是一種更為人性化的監(jiān)管方式。它尊重矯正對(duì)象的人格尊嚴(yán),對(duì)其實(shí)行文明管理并給予相應(yīng)的人文關(guān)懷,使之能盡快健全缺失的社會(huì)人格,更好地復(fù)歸社會(huì);通過(guò)充分利用社區(qū)、民間組織、志愿者等社會(huì)力量,很好的發(fā)揮了社區(qū)作為基層組織的柔性的社會(huì)整合功能,也構(gòu)建了易于犯罪人再社會(huì)化的良好環(huán)境;通過(guò)解決社區(qū)矯正人員在生活、就業(yè)等方面遇到的問(wèn)題,可以弱化其與社會(huì)的對(duì)立情緒,有利于構(gòu)建預(yù)防和減少犯罪的長(zhǎng)效機(jī)制,達(dá)到維護(hù)社會(huì)安全穩(wěn)定的目的,因此在我國(guó)具有將其本土化的現(xiàn)實(shí)必要性。 社區(qū)矯正作為一種社會(huì)化、開放性的行刑模式,既是社會(huì)經(jīng)濟(jì)發(fā)展到一定程度的產(chǎn)物,同時(shí),它的實(shí)施又必然需要以一定的經(jīng)濟(jì)社會(huì)條件為支撐。如社會(huì)的文明程度、開放程度以及社區(qū)對(duì)犯罪人的接納能力和矯正能力等。筆者認(rèn)為,目前我國(guó)已初步具備了開展社區(qū)矯正的以下社會(huì)現(xiàn)實(shí)條件: 社會(huì)基礎(chǔ)——在當(dāng)前我國(guó)社會(huì),伴隨著市民社會(huì)與政治國(guó)家的逐步分離,二元社會(huì)結(jié)構(gòu)模式已初步形成,一個(gè)相對(duì)獨(dú)立的市民社會(huì)正在成長(zhǎng)起來(lái),這為社區(qū)矯正的開展提供了必要的社會(huì)基礎(chǔ)。 社會(huì)和輿論根基——犯罪人權(quán)利意識(shí)的增強(qiáng)和犯罪人權(quán)利保護(hù)程度的提高,必將為社區(qū)矯正理論的發(fā)展充當(dāng)堅(jiān)實(shí)的社會(huì)和輿論根基。 學(xué)理基礎(chǔ)——伴隨著我國(guó)社會(huì)由一元結(jié)構(gòu)向二元結(jié)構(gòu)演變的順利完成及犯罪人權(quán)利意識(shí)的增強(qiáng)和犯罪人權(quán)利保護(hù)程度的不斷提高,我國(guó)越來(lái)越多的刑法學(xué)者開始將研究的視角轉(zhuǎn)向犯罪人,開始關(guān)注犯罪人的形成原因和對(duì)犯罪人的正當(dāng)處遇問(wèn)題。刑法學(xué)的研究視角從犯罪到犯罪人的轉(zhuǎn)換必將為社區(qū)矯正在我國(guó)的勃興奠定堅(jiān)實(shí)的學(xué)理基礎(chǔ)。 第三部分:通過(guò)查閱資料,運(yùn)用比較研究的方法辯證地闡述我國(guó)社區(qū)矯正試點(diǎn)工作中的不足。 在為期不長(zhǎng)的試點(diǎn)中,社區(qū)矯正作為一種新事物其強(qiáng)大的生命力已初見(jiàn)端倪。在解決監(jiān)獄擁擠問(wèn)題、節(jié)約行刑資源、改造犯罪人、增強(qiáng)刑罰效能等方面取得了較好的成效。但由于我國(guó)的社區(qū)矯正工作目前尚處在初步探索階段,所以在試點(diǎn)工作中,無(wú)論是在立法層面還是在實(shí)踐操作中,無(wú)論是在實(shí)體上還是在程序上,從社區(qū)矯正的執(zhí)行主體法律地位的確認(rèn)到社區(qū)服刑人員的確定,從具體的矯正措施的安排到社區(qū)矯正的程序保障都存在不少問(wèn)題,都需要不斷的進(jìn)行修改與完善,故而本文的另一個(gè)寫作重點(diǎn)便是接下來(lái)的第四部分,即我國(guó)社區(qū)矯正制度的構(gòu)建與完善。 第四部分:為完善我國(guó)的社區(qū)矯正制度,針對(duì)第三部分存在的不足,提出自己不太成熟的建議與設(shè)想,以期為我國(guó)社區(qū)矯正制度的構(gòu)建竭盡自己的綿薄之力。 從第三部分對(duì)我國(guó)社區(qū)矯正實(shí)踐中存在的問(wèn)題的相關(guān)論述來(lái)看,無(wú)論是在觀念認(rèn)識(shí)層面還是在立法完善方面,我國(guó)目前的社區(qū)矯正制度都存在不少缺陷與不足。因此,本文重點(diǎn)從如下兩個(gè)方面來(lái)完善我國(guó)的社區(qū)矯正制度: 1、觀念層面的轉(zhuǎn)變——更新刑罰理念;2、立法層面的完善——重構(gòu)社區(qū)矯正法律制度。 從我國(guó)社區(qū)矯正實(shí)踐中存在的問(wèn)題來(lái)看,無(wú)論是執(zhí)行內(nèi)容、執(zhí)行主體,還是執(zhí)行程序,問(wèn)題的關(guān)鍵都在于無(wú)法可依。因此,通過(guò)立法層面的完善來(lái)重構(gòu)我國(guó)的社區(qū)矯正法律制度是本部分的論述重點(diǎn),主要從刑事實(shí)體法(刑法)和刑事程序法(刑事訴訟法)兩個(gè)思考維度對(duì)社區(qū)矯正的修改與完善進(jìn)行了闡述。 從刑事實(shí)體法(刑法)維度,針對(duì)實(shí)體法方面存在的問(wèn)題,本文試圖著重以社區(qū)矯正對(duì)象的不同為研究視角,針對(duì)我國(guó)現(xiàn)行社區(qū)矯正相關(guān)立法方面的不足,根據(jù)社區(qū)矯正試點(diǎn)工作的最高文件《通知》中規(guī)定的社區(qū)矯正的五種不同適用對(duì)象逐一進(jìn)行修改與完善。 針對(duì)刑事程序法(刑事訴訟法)方面存在的不足,筆者從統(tǒng)一刑罰執(zhí)行機(jī)構(gòu)和整合行刑資源兩方面進(jìn)行了初步設(shè)想,以期能夠與刑事實(shí)體法(刑法)的制度完善相得益彰。
[Abstract]:Throughout the history of the development of criminal law, it is not difficult to find that the overall trend of the development of penalty is from harshness to relaxation.
Community correction represents the trend and trend of the development of execution in the world. Therefore, in July 2003, China has carried out the pilot work of community correction in some areas. As a new execution system different from the traditional severe punishment doctrine, community correction system has just started in China, whether in criminal law theory or in judicial practice. As an exploratory study, guided by multi-disciplinary knowledge of law and sociology, this paper introduces the ideological evolution, theoretical value and social foundation of community correction in China. At last, the author puts forward the idea of constructing a new community correction model which is suitable for China's national conditions. Specifically, apart from the introduction and conclusion, the author tries to write this article from the following four aspects:
The first part is an introduction. This part begins with the "Notice on the Pilot Work of Community Correction" issued jointly by the two courts on July 10, 2003, and raises some questions. Then it discusses the theoretical basis of community correction in detail by using the methods of historical research and comparative study.
In this part, the author makes a detailed theoretical analysis of the theoretical basis of community correction from seven different perspectives. In the process of explaining and analyzing the theoretical basis from different perspectives, it is not difficult to draw the conclusion that the rise of community correction system is the inevitable result of the development of penalty, and it is the people's re-examination of penalty and the economization of execution. After the contradiction and conflict of principles, a brand-new concept of penalty emerges. Its existence is based on the cross-support of the above-mentioned different theories. Its theoretical background is the rise of the theory of educational penalty, which is based on the premise of personality correction, aiming at the return of criminals to society, and embodies the humanistic value of execution and the modesty of penalty. It can be said that restraining thought, reflecting the economic principle of execution and the theory of criminal compensation, is the deep development of the theory of return and the inevitable end-result of the theory of socialization of punishment.
The second part discusses the practical necessity and academic possibility of community correction in China.
The great value of community correction is undoubted. However, an important question is whether it is necessary to implement this pattern in China, which originates from western developed countries. In this regard, the author thinks that community correction weakens the "label effect" of criminals and embodies the spirit of humanism. It respects the personality dignity of the corrected object, carries out civilized management and gives corresponding humanistic care so that it can perfect the missing social personality as soon as possible and return to society better. By making full use of the social forces of the community, non-governmental organizations, volunteers and so on, the community has played a good role as a grass-roots group. The flexible social integration function of the organization also constructs a favorable environment for the re-socialization of criminals; by solving the problems encountered by the community correction personnel in life and employment, the opposition between the community and the society can be weakened, and the long-term mechanism for preventing and reducing crime can be constructed to maintain social security and stability. In China, it is necessary to localize it.
Community correction, as a socialized and open mode of execution, is not only the product of social and economic development to a certain extent, but also the implementation of it must be supported by certain economic and social conditions. China has preliminarily got the following social realities to carry out community correction:
Social Foundation - In the current Chinese society, along with the gradual separation of civil society and political state, the dual social structure model has been initially formed, and a relatively independent civil society is growing up, which provides the necessary social foundation for the development of community correction.
The foundation of society and public opinion, the enhancement of criminal's right consciousness and the improvement of criminal's right protection, will certainly serve as a solid social and public opinion foundation for the development of community correction theory.
Theoretical Foundation-With the smooth completion of the evolution of China's society from a unitary structure to a dualistic structure, the enhancement of criminals'awareness of rights and the continuous improvement of the protection of criminals' rights, more and more Chinese scholars of criminal law begin to turn their research perspectives to criminals, and begin to pay attention to the causes of the formation of criminals and the integrity of criminals. The transformation of the perspective of criminal law from crime to criminal will certainly lay a solid theoretical foundation for the vigorous development of community correction in China.
The third part: Through consulting the data and using the method of comparative study, the author dialectically expounds the deficiencies in the pilot work of community correction in China.
In the short-term pilot, community correction as a new thing, its strong vitality has begun to appear. It has achieved good results in solving the jail congestion problem, saving execution resources, reforming criminals, and enhancing the efficiency of punishment. However, the community correction work in China is still in the preliminary exploration stage, so in the pilot. In the work, whether in the legislative level or in practice, whether in the substantive or procedural, from the confirmation of the legal status of the executive subject of community correction to the determination of community prisoners, from the arrangement of specific corrective measures to the procedural guarantee of community correction, there are many problems, which need to be constantly revised and improved. Perfect, so another writing focus of this article is the next part, that is, the construction and improvement of the community correction system in China.
The fourth part: In order to perfect the community correction system in our country, aiming at the shortcomings of the third part, the author puts forward some suggestions and assumptions which are not mature enough, in order to do his little contribution to the construction of the community correction system in our country.
From the third part of the community correction practice in China, the problems related to the discussion, whether in the conceptual level of understanding or in the improvement of legislation, China's current community correction system has many defects and deficiencies. Transformation -- updating the concept of punishment; 2, improving the legislative level -- Reconstructing the legal system of community correction.
From the point of view of the problems existing in the practice of community correction in China, the key to the problems lies in the inability to rely on, whether it is the content of implementation, the subject of implementation or the procedure of implementation. The two thinking dimensions of criminal procedure law expounds the improvement and perfection of community correction.
From the dimension of criminal substantive law (criminal law) and in view of the existing problems in substantive law, this paper attempts to focus on the different objects of community correction as the research perspective, aiming at the deficiencies of the current community correction related legislation in China, according to the five different objects of community correction stipulated in the "Notice" of the highest document on community correction pilot work. First, make amendments and improvements.
In view of the shortcomings of the Criminal Procedure Law (CPL), the author makes a preliminary assumption on the unification of penalty execution institutions and the integration of execution resources in order to complement the perfection of the criminal substantive law (criminal law).
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D926.8
本文編號(hào)：2195479
[Abstract]:Throughout the history of the development of criminal law, it is not difficult to find that the overall trend of the development of penalty is from harshness to relaxation.
Community correction represents the trend and trend of the development of execution in the world. Therefore, in July 2003, China has carried out the pilot work of community correction in some areas. As a new execution system different from the traditional severe punishment doctrine, community correction system has just started in China, whether in criminal law theory or in judicial practice. As an exploratory study, guided by multi-disciplinary knowledge of law and sociology, this paper introduces the ideological evolution, theoretical value and social foundation of community correction in China. At last, the author puts forward the idea of constructing a new community correction model which is suitable for China's national conditions. Specifically, apart from the introduction and conclusion, the author tries to write this article from the following four aspects:
The first part is an introduction. This part begins with the "Notice on the Pilot Work of Community Correction" issued jointly by the two courts on July 10, 2003, and raises some questions. Then it discusses the theoretical basis of community correction in detail by using the methods of historical research and comparative study.
In this part, the author makes a detailed theoretical analysis of the theoretical basis of community correction from seven different perspectives. In the process of explaining and analyzing the theoretical basis from different perspectives, it is not difficult to draw the conclusion that the rise of community correction system is the inevitable result of the development of penalty, and it is the people's re-examination of penalty and the economization of execution. After the contradiction and conflict of principles, a brand-new concept of penalty emerges. Its existence is based on the cross-support of the above-mentioned different theories. Its theoretical background is the rise of the theory of educational penalty, which is based on the premise of personality correction, aiming at the return of criminals to society, and embodies the humanistic value of execution and the modesty of penalty. It can be said that restraining thought, reflecting the economic principle of execution and the theory of criminal compensation, is the deep development of the theory of return and the inevitable end-result of the theory of socialization of punishment.
The second part discusses the practical necessity and academic possibility of community correction in China.
The great value of community correction is undoubted. However, an important question is whether it is necessary to implement this pattern in China, which originates from western developed countries. In this regard, the author thinks that community correction weakens the "label effect" of criminals and embodies the spirit of humanism. It respects the personality dignity of the corrected object, carries out civilized management and gives corresponding humanistic care so that it can perfect the missing social personality as soon as possible and return to society better. By making full use of the social forces of the community, non-governmental organizations, volunteers and so on, the community has played a good role as a grass-roots group. The flexible social integration function of the organization also constructs a favorable environment for the re-socialization of criminals; by solving the problems encountered by the community correction personnel in life and employment, the opposition between the community and the society can be weakened, and the long-term mechanism for preventing and reducing crime can be constructed to maintain social security and stability. In China, it is necessary to localize it.
Community correction, as a socialized and open mode of execution, is not only the product of social and economic development to a certain extent, but also the implementation of it must be supported by certain economic and social conditions. China has preliminarily got the following social realities to carry out community correction:
Social Foundation - In the current Chinese society, along with the gradual separation of civil society and political state, the dual social structure model has been initially formed, and a relatively independent civil society is growing up, which provides the necessary social foundation for the development of community correction.
The foundation of society and public opinion, the enhancement of criminal's right consciousness and the improvement of criminal's right protection, will certainly serve as a solid social and public opinion foundation for the development of community correction theory.
Theoretical Foundation-With the smooth completion of the evolution of China's society from a unitary structure to a dualistic structure, the enhancement of criminals'awareness of rights and the continuous improvement of the protection of criminals' rights, more and more Chinese scholars of criminal law begin to turn their research perspectives to criminals, and begin to pay attention to the causes of the formation of criminals and the integrity of criminals. The transformation of the perspective of criminal law from crime to criminal will certainly lay a solid theoretical foundation for the vigorous development of community correction in China.
The third part: Through consulting the data and using the method of comparative study, the author dialectically expounds the deficiencies in the pilot work of community correction in China.
In the short-term pilot, community correction as a new thing, its strong vitality has begun to appear. It has achieved good results in solving the jail congestion problem, saving execution resources, reforming criminals, and enhancing the efficiency of punishment. However, the community correction work in China is still in the preliminary exploration stage, so in the pilot. In the work, whether in the legislative level or in practice, whether in the substantive or procedural, from the confirmation of the legal status of the executive subject of community correction to the determination of community prisoners, from the arrangement of specific corrective measures to the procedural guarantee of community correction, there are many problems, which need to be constantly revised and improved. Perfect, so another writing focus of this article is the next part, that is, the construction and improvement of the community correction system in China.
The fourth part: In order to perfect the community correction system in our country, aiming at the shortcomings of the third part, the author puts forward some suggestions and assumptions which are not mature enough, in order to do his little contribution to the construction of the community correction system in our country.
From the third part of the community correction practice in China, the problems related to the discussion, whether in the conceptual level of understanding or in the improvement of legislation, China's current community correction system has many defects and deficiencies. Transformation -- updating the concept of punishment; 2, improving the legislative level -- Reconstructing the legal system of community correction.
From the point of view of the problems existing in the practice of community correction in China, the key to the problems lies in the inability to rely on, whether it is the content of implementation, the subject of implementation or the procedure of implementation. The two thinking dimensions of criminal procedure law expounds the improvement and perfection of community correction.
From the dimension of criminal substantive law (criminal law) and in view of the existing problems in substantive law, this paper attempts to focus on the different objects of community correction as the research perspective, aiming at the deficiencies of the current community correction related legislation in China, according to the five different objects of community correction stipulated in the "Notice" of the highest document on community correction pilot work. First, make amendments and improvements.
In view of the shortcomings of the Criminal Procedure Law (CPL), the author makes a preliminary assumption on the unification of penalty execution institutions and the integration of execution resources in order to complement the perfection of the criminal substantive law (criminal law).
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D926.8
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 程娟;未成年犯的再社會(huì)化[D];曲阜師范大學(xué);2012年
，本文編號(hào)：2195479
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