論我國特赦制度在死刑案件中的運用
發(fā)布時間：2019-01-10 14:20
【摘要】：我國的死刑問題是刑法學界及社會公眾長期關注的熱點問題，而赦免問題則是刑罰理論中乏人問津的研究課題。實際上，赦免作為刑罰消滅制度的一種，，完全可以在量刑之后實際執(zhí)行之前阻止死刑判決的執(zhí)行，也就是說限制死刑這一刑事政策與特赦制度這一刑罰制度的交匯必然只能是在死刑案件中運用特赦制度。 我國自建國以來憲法、刑法和刑訴法均一直保留有特赦制度的立法例，并且有過特赦制度的成功實踐。但是自1975年最后一次特赦戰(zhàn)犯至今三十余年間，我國再也沒有運用過特赦制度。因此而形成了赦免制度在整個刑事處分體系中被逐漸邊緣化的現狀。特赦制度的虛置既是對立法資源的一種浪費，也使得我國的刑事政策體系和刑事法治領域缺乏必要的柔性。赦免制度被虛置的主要原因是實踐中存在制度上和觀念上的障礙。法律對特赦制度的規(guī)定不系統(tǒng)，尤其是對特赦的效力規(guī)定不明確，使得特赦制度的法律地位日益邊緣化，更使得在運用特赦制度之時，無法具有強大說服力和法律效力更改既定判決。之所以要使位于法律體系邊緣的特赦制度在死刑案件中發(fā)揮重要作用，是因為該制度具有消滅刑罰權的效果，將特赦制度運用于死刑案件中會對避免死刑案件中的錯殺產生一定的作用。同時赦免是法律制度效力的例外，是在理性的司法判斷之外加入感性的道德情感。出于社會管理和國家政策的需要，對死刑案件進行特赦，是緩和我國一向嚴厲的刑事政策的需要。 至于在死刑案件中運用特赦的具體構想，首先應當將其明確為一個司法程序，由“兩高”提出特定的死刑案件赦免申請為宜，同時中央軍事委員會的特赦請求權決不可排除。在死刑案件中引入特赦制度必然要厘清特赦制度與其他刑罰制度的區(qū)隔與銜接問題，應該考慮死刑執(zhí)行程序與特赦制度的銜接問題，并且赦免性減刑應當與普通減刑和特赦區(qū)別開。在實體法層面，由法律將死刑案件的特赦事由加以確認，明確可赦免罪名實際上是明確可以特赦的犯罪種類。在程序法層面，應當明確申請的主體，減少有權申請的主體數量以集中申請權，同時應當開啟自下而上的赦免啟動模式。就死刑赦免的決定主體而言，仍應以全國人大常委會為宜，但是具體操作需要作出調整。
[Abstract]:The question of death penalty in our country is a hot issue of criminal law and the public for a long time, while the issue of pardon is a research topic that has not been asked by anyone in the theory of penalty. In fact, as a system of penalty elimination, pardons can completely prevent the execution of death sentences before they are actually carried out after sentencing. That is to say, the confluence of the criminal policy of restricting the death penalty and the system of amnesty is bound to be the application of the system of amnesty in death penalty cases. Since the founding of the people's Republic of China, the Constitution, Criminal Law and Criminal procedure Law have kept the legislation of amnesty system, and have experienced the successful practice of amnesty system. However, since 1975, the last amnesty for war criminals has not been applied in China for more than 30 years. As a result, the amnesty system is gradually marginalized in the whole criminal punishment system. The hypocrisy of amnesty system is not only a waste of legislative resources, but also a lack of necessary flexibility in the criminal policy system and criminal rule of law in our country. The main reason for the hypocrisy of pardon system is that there are institutional and conceptual obstacles in practice. The provisions of the law on the amnesty system are not systematic, especially on the validity of the amnesty system, which makes the legal status of the amnesty system increasingly marginalized, and makes the application of the amnesty system even more important. Unable to have strong persuasive and legal effect to change the established judgment. The reason why the amnesty system, which is on the edge of the legal system, plays an important role in death penalty cases is that it has the effect of eliminating the power of punishment. The application of amnesty system in death penalty cases will play a certain role in avoiding the wrong killing in death penalty cases. At the same time, pardon is the exception of the legal system, and the emotional moral emotion is added to the rational judicial judgment. For the needs of social management and national policy, amnesty of death penalty cases is the need to ease our country's strict criminal policy. As for the concrete conception of the application of amnesty in death penalty cases, first of all, it should be clearly defined as a judicial procedure, and it is appropriate for "two High levels" to put forward a specific application for pardon in death penalty cases, and at the same time, the request for amnesty of the Central military Commission must not be ruled out. To introduce the amnesty system in death penalty cases, we must clarify the distinction and convergence between the amnesty system and other penalty systems, and we should consider the connection between the execution procedure of the death penalty and the amnesty system. And pardonable commutation should be distinguished from ordinary commutation and amnesty. In the aspect of substantive law, the law confirms the reason of pardon in death penalty cases, and it is clear that the crime of pardon is the kind of crime that can be granted amnesty. In procedural law, the subject of application should be clearly defined and the number of subjects entitled to apply should be reduced in order to centralize the right to apply. At the same time, the mode of starting amnesty from bottom to top should be opened. The NPC standing Committee should still be regarded as the subject of the decision on the pardon of death penalty, but the concrete operation needs to be adjusted.
【學位授予單位】：湘潭大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D924.1
本文編號：2406413
[Abstract]:The question of death penalty in our country is a hot issue of criminal law and the public for a long time, while the issue of pardon is a research topic that has not been asked by anyone in the theory of penalty. In fact, as a system of penalty elimination, pardons can completely prevent the execution of death sentences before they are actually carried out after sentencing. That is to say, the confluence of the criminal policy of restricting the death penalty and the system of amnesty is bound to be the application of the system of amnesty in death penalty cases. Since the founding of the people's Republic of China, the Constitution, Criminal Law and Criminal procedure Law have kept the legislation of amnesty system, and have experienced the successful practice of amnesty system. However, since 1975, the last amnesty for war criminals has not been applied in China for more than 30 years. As a result, the amnesty system is gradually marginalized in the whole criminal punishment system. The hypocrisy of amnesty system is not only a waste of legislative resources, but also a lack of necessary flexibility in the criminal policy system and criminal rule of law in our country. The main reason for the hypocrisy of pardon system is that there are institutional and conceptual obstacles in practice. The provisions of the law on the amnesty system are not systematic, especially on the validity of the amnesty system, which makes the legal status of the amnesty system increasingly marginalized, and makes the application of the amnesty system even more important. Unable to have strong persuasive and legal effect to change the established judgment. The reason why the amnesty system, which is on the edge of the legal system, plays an important role in death penalty cases is that it has the effect of eliminating the power of punishment. The application of amnesty system in death penalty cases will play a certain role in avoiding the wrong killing in death penalty cases. At the same time, pardon is the exception of the legal system, and the emotional moral emotion is added to the rational judicial judgment. For the needs of social management and national policy, amnesty of death penalty cases is the need to ease our country's strict criminal policy. As for the concrete conception of the application of amnesty in death penalty cases, first of all, it should be clearly defined as a judicial procedure, and it is appropriate for "two High levels" to put forward a specific application for pardon in death penalty cases, and at the same time, the request for amnesty of the Central military Commission must not be ruled out. To introduce the amnesty system in death penalty cases, we must clarify the distinction and convergence between the amnesty system and other penalty systems, and we should consider the connection between the execution procedure of the death penalty and the amnesty system. And pardonable commutation should be distinguished from ordinary commutation and amnesty. In the aspect of substantive law, the law confirms the reason of pardon in death penalty cases, and it is clear that the crime of pardon is the kind of crime that can be granted amnesty. In procedural law, the subject of application should be clearly defined and the number of subjects entitled to apply should be reduced in order to centralize the right to apply. At the same time, the mode of starting amnesty from bottom to top should be opened. The NPC standing Committee should still be regarded as the subject of the decision on the pardon of death penalty, but the concrete operation needs to be adjusted.
【學位授予單位】：湘潭大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D924.1
【參考文獻】
相關期刊論文 前10條
1 賴早興;;我國死刑赦免制度之完善——基于美國行政赦免制度的思考[J];湖南社會科學;2008年03期
2 黃芳;論死刑適用的國際標準與國內法的協(xié)調[J];法學評論;2003年06期
3 劉蕾;;我國增設死刑特赦程序之構想[J];湖北警官學院學報;2006年05期
4 裴昱;;我國赦免制度的缺陷及立法完善[J];河南司法警官職業(yè)學院學報;2008年02期
5 竹懷軍;論我國死刑赦免制度的構建[J];湖南師范大學社會科學學報;2004年05期
6 劉志偉,左堅衛(wèi);完善我國緩刑考察制度的若干建議[J];江海學刊;2003年03期
7 朱文友;他創(chuàng)造了中國監(jiān)獄減刑史上的最高紀錄[J];人民公安;2001年07期
8 沈玉忠;;中國現實語境下赦免制度的適用分析[J];汕頭大學學報(人文社會科學版);2010年03期
9 釗作俊;死刑廢止:歷史與超越[J];河南省政法管理干部學院學報;2005年02期
10 劉健,賴早興;我國赦免制度的激活與完善——基于限制死刑的思考[J];現代法學;2004年04期
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