論我國少年虞犯保護(hù)處分制度的構(gòu)建
發(fā)布時(shí)間：2018-11-01 18:51
【摘要】：犯罪現(xiàn)象是可認(rèn)知的、可測(cè)量的。根據(jù)有關(guān)統(tǒng)計(jì)數(shù)據(jù)顯示，我國近些年的少年犯罪總體呈上升走勢(shì)，并伴隨一些新的特點(diǎn)，如犯罪主體低齡化現(xiàn)象嚴(yán)重、案件類型多樣化、犯罪暴力化程度加劇、新型犯罪不斷涌現(xiàn)、作案手段成人化與智能化、團(tuán)伙作案比重上升等。由于少年這個(gè)時(shí)期心理素質(zhì)弱，易受到周圍環(huán)境的影響，一旦出現(xiàn)行為偏差，則發(fā)展為不良行為，進(jìn)而積累惡習(xí)，屢教不改，最終走上違法犯罪的道路。這些少年犯罪案件中，有相當(dāng)一部分的少年，平時(shí)就具有一些不良行為，如經(jīng)常逃課、離家出走、混跡于游戲廳與歌舞廳等不適宜少年久留的場所、打架斗毆、小偷小摸等等。如果父母、學(xué)校甚至是社會(huì)公眾，及早發(fā)現(xiàn)少年的不良行為并加以重視，積極進(jìn)行引導(dǎo)、教育，也許就不會(huì)發(fā)生一起起的悲劇事件。 我國《預(yù)防未成年人犯罪法》中規(guī)定了少年的不良行為，其行為性質(zhì)與其他國家和地區(qū)的“少年虞犯”規(guī)定在一定內(nèi)容上重合，，但我國對(duì)實(shí)施不良行為的少年的處遇措施卻多以非刑罰方法和行政處罰措施為主，在此過程中可能涉及限制或者剝奪少年的人身自由，這與整個(gè)國際社會(huì)尊重少年、保護(hù)少年的司法理念相違背。而對(duì)比之下，其他國家和地區(qū)的少年虞犯有一個(gè)比較完備、獨(dú)立的保護(hù)處分體系，在非監(jiān)禁化、非刑罰化的理念引導(dǎo)下，明確了由輕至重的保護(hù)處分措施，以社區(qū)性保護(hù)處分為原則，以拘禁性保護(hù)處分為例外。少年虞犯是指那些實(shí)施的行為雖然未觸犯刑法之刑罰，卻有實(shí)施犯罪行為可能性的少年，其本身具有犯罪的潛在危險(xiǎn)，若不加以正當(dāng)、合理對(duì)待，極有可能促發(fā)少年實(shí)施真正的犯罪行為。其他國家和地區(qū)的少年虞犯保護(hù)處分制度是通過設(shè)立專門的調(diào)查機(jī)構(gòu)對(duì)少年的個(gè)性特征、教育程度、家庭情形、社會(huì)環(huán)境、事件緣由、案后心理狀態(tài)等情況進(jìn)行全方位的調(diào)查，由少年法院依據(jù)調(diào)查的結(jié)果對(duì)少年做出不予或者予以一定保護(hù)處分的裁定。 少年虞犯的保護(hù)處分制度本著保護(hù)少年、預(yù)防少年犯罪的目的，對(duì)其適用輕緩化、非監(jiān)禁化的處遇措施，一方面能夠教育、改良少年，促使他們重歸正常人的生活，消除他們身上的不穩(wěn)定要素，另一方面可以保障少年的人權(quán)，避免其受到司法的不公正對(duì)待，激化他們的報(bào)復(fù)心理，對(duì)社會(huì)造成不良影響。我國目前存在的一些針對(duì)不良行為少年的處遇措施不具有替代刑罰的性質(zhì)，一定情形下是作為刑罰的補(bǔ)充，并且大多屬于行政處罰措施的范疇，因而在保護(hù)處分制度的確立與相關(guān)配套機(jī)構(gòu)上的設(shè)置上存有缺陷。我國雖然未專門、系統(tǒng)化地規(guī)定保護(hù)處分，但是在內(nèi)容規(guī)定上與其他國家和地區(qū)的保護(hù)處分大致相同，有學(xué)習(xí)、借鑒其他國家和地區(qū)相關(guān)制度的基礎(chǔ)。
[Abstract]:Crime is cognitive and measurable. According to the relevant statistical data, juvenile delinquency in China has generally increased in recent years, accompanied by some new characteristics, such as the serious phenomenon of low age of the subject of crime, the diversification of cases, and the intensification of violent crime. New types of crimes are emerging, crime means become more and more intelligent, gang crime proportion is rising, and so on. As the psychological quality of juvenile is weak in this period, it is easy to be affected by the surrounding environment. Once the behavior deviates, it develops into bad behavior, and then accumulates bad habits, and does not change after repeated teaching, and finally steps on the road of illegal crime. In these juvenile delinquency cases, a considerable number of teenagers usually have some bad behavior, such as often skipping classes, running away from home, mixing in games halls and dance halls and other places unsuitable for teenagers to stay for a long time, fighting and fighting, petty theft, and so on. If parents, schools and even the public, early detection and attention to juvenile bad behavior, active guidance, education, may not occur a tragic event. The Chinese Law on the Prevention of Juvenile Delinquency provides for juvenile misconduct, the nature of which coincides with the provisions of "juvenile delinquency" in other countries and regions. However, in our country, the measures of dealing with juveniles who commit misconduct are mainly non-penal methods and administrative punishment measures, which may involve restricting or depriving juveniles of their personal liberty in this process, which is in keeping with the respect of the entire international community for juveniles. The idea of protecting juveniles is contrary to the concept of justice. In contrast, juvenile Yu in other countries and regions has committed a relatively complete and independent system of protection and punishment. Under the guidance of the concept of non-imprisonment and non-punishment, the measures of protection from light to heavy have been clearly defined. Community protection is the principle, and custodial protection is the exception. Juvenile delinquency is a kind of juvenile who has the possibility of committing a criminal act although he has not violated the penalty of criminal law. It has the potential danger of committing a crime, and if it is not justified, it should be treated reasonably. It is highly likely that a juvenile will be motivated to commit a real crime. The protection and punishment system for juvenile delinquency in other countries and regions is to conduct a comprehensive investigation into the juvenile's personality characteristics, education level, family situation, social environment, cause of events, post-case psychological state and so on through the establishment of a special investigation body. The juvenile court shall decide not to grant protection to the juvenile according to the result of the investigation. The system of protection and punishment for juvenile delinquents is aimed at protecting juveniles and preventing juvenile delinquency by applying the measures of light and non-custodial measures to them. On the one hand, they can educate and improve juveniles and make them return to normal people's lives. On the other hand, it can protect the human rights of juveniles, prevent them from being treated unjustly by judicature, intensify their vindictive mentality, and have a negative impact on society. At present, some of the measures for juvenile malpractice in our country do not have the nature of substitute punishment, they are supplementary to the punishment in certain circumstances, and most of them belong to the category of administrative punishment measures. Therefore, there are defects in the establishment of protective punishment system and the establishment of relevant supporting institutions. Although our country does not specifically and systemically stipulate the protection punishment, it is similar to the protection punishment of other countries and regions in terms of content, so we can learn from the relevant systems of other countries and regions and draw lessons from the foundation of the relevant systems of other countries and regions.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.1
本文編號(hào)：2304793
[Abstract]:Crime is cognitive and measurable. According to the relevant statistical data, juvenile delinquency in China has generally increased in recent years, accompanied by some new characteristics, such as the serious phenomenon of low age of the subject of crime, the diversification of cases, and the intensification of violent crime. New types of crimes are emerging, crime means become more and more intelligent, gang crime proportion is rising, and so on. As the psychological quality of juvenile is weak in this period, it is easy to be affected by the surrounding environment. Once the behavior deviates, it develops into bad behavior, and then accumulates bad habits, and does not change after repeated teaching, and finally steps on the road of illegal crime. In these juvenile delinquency cases, a considerable number of teenagers usually have some bad behavior, such as often skipping classes, running away from home, mixing in games halls and dance halls and other places unsuitable for teenagers to stay for a long time, fighting and fighting, petty theft, and so on. If parents, schools and even the public, early detection and attention to juvenile bad behavior, active guidance, education, may not occur a tragic event. The Chinese Law on the Prevention of Juvenile Delinquency provides for juvenile misconduct, the nature of which coincides with the provisions of "juvenile delinquency" in other countries and regions. However, in our country, the measures of dealing with juveniles who commit misconduct are mainly non-penal methods and administrative punishment measures, which may involve restricting or depriving juveniles of their personal liberty in this process, which is in keeping with the respect of the entire international community for juveniles. The idea of protecting juveniles is contrary to the concept of justice. In contrast, juvenile Yu in other countries and regions has committed a relatively complete and independent system of protection and punishment. Under the guidance of the concept of non-imprisonment and non-punishment, the measures of protection from light to heavy have been clearly defined. Community protection is the principle, and custodial protection is the exception. Juvenile delinquency is a kind of juvenile who has the possibility of committing a criminal act although he has not violated the penalty of criminal law. It has the potential danger of committing a crime, and if it is not justified, it should be treated reasonably. It is highly likely that a juvenile will be motivated to commit a real crime. The protection and punishment system for juvenile delinquency in other countries and regions is to conduct a comprehensive investigation into the juvenile's personality characteristics, education level, family situation, social environment, cause of events, post-case psychological state and so on through the establishment of a special investigation body. The juvenile court shall decide not to grant protection to the juvenile according to the result of the investigation. The system of protection and punishment for juvenile delinquents is aimed at protecting juveniles and preventing juvenile delinquency by applying the measures of light and non-custodial measures to them. On the one hand, they can educate and improve juveniles and make them return to normal people's lives. On the other hand, it can protect the human rights of juveniles, prevent them from being treated unjustly by judicature, intensify their vindictive mentality, and have a negative impact on society. At present, some of the measures for juvenile malpractice in our country do not have the nature of substitute punishment, they are supplementary to the punishment in certain circumstances, and most of them belong to the category of administrative punishment measures. Therefore, there are defects in the establishment of protective punishment system and the establishment of relevant supporting institutions. Although our country does not specifically and systemically stipulate the protection punishment, it is similar to the protection punishment of other countries and regions in terms of content, so we can learn from the relevant systems of other countries and regions and draw lessons from the foundation of the relevant systems of other countries and regions.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.1
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