论宽严相济刑事政策在检察工作中的适用

发布时间：2019-06-06 09:35

【摘要】：为科学应对社会治安形势的变化,我国提出了新时期的刑事政策----宽严相济。这在我国刑事法治领域具有里程碑意义,成为我国新时期社会主义和谐社会建设的重要手段和政策保障。但由于现阶段对于宽严相济刑事的研究较多停留在理论角度,结合司法实践较少,尤其是具体结合检察机关的三个重点业务工作----侦查监督、起诉、抗诉的研究较少,影响了宽严相济刑事政策在检察工作中的具体适用。我国宽严相济刑事政策的历史渊源是“宽猛相济”的治国思想,直接源头是惩办与宽大相结合的刑事政策。宽严相济刑事政策实际上是由“宽”和“严”两部分组成,“宽”主要针对轻罪,“严”则是针对重罪,内容可以概括为“该严则严,当宽则宽；宽严互补,宽严有度；审时度势,以宽为主。”结合我国客观实际情况,宽严相济刑事政策应当抓住两个原则：罪刑法定原则和罪行相适应原则。宽严相济刑事政策尤其是其中的“宽”,与刑法谦抑精神内涵上存在一致性,有着经济性、最后性、有限性、宽容性等特点。目前我国的犯罪现象呈现的政治色彩越来越淡,大量的犯罪是人们对于财产过度追求与现阶段社会还不能提供较多的活动财产的合法途径之间的矛盾,以及一些邻里之间矛盾引发的犯罪,犯罪现象的变化要求实行宽严相济刑事政策,区分不同情况给予区别对待。我国正在构建和谐社会,宽严相济刑事政策正是在这一大背景下提出的现阶段刑事政策,与和谐社会要求的民主法治、公平正义、诚信友爱、充满活力、安定有序等方面有着共通点。同时,我国目前存在司法资源短缺的现状,迫切需要通过宽严相济刑事政策来合理配置有限的司法资源。宽严相济刑事政策在检察工作各个环节的全面正确贯彻落实,对于惩治犯罪,保障人权,维护社会的和谐稳定,促进司法的公正高效,具有重大的现实意义和深远的历史意义。目前迫切需要检察机关以宽严相济的刑事政策为指导,在检察工作侦查监督、起诉、抗诉等程序中全面适用。但是检察机关在贯彻落实宽严相济刑事政策的过程中,依然存在诸多问题。在侦查监督程序中存在司法观念滞后、替代措施不够完善、考核机制指向偏离、侦查活动监督不力等问题。针对存在的问题,首先应当以正确思想为指导,有效协调、解决在轻微刑事案件中适用不捕决定与保证诉讼间的矛盾；其次应当发挥主观能动性,通过扩大侦查监督范围、补充侦查监督方式、强化侦查监督措施,使侦查监督工作落到实处；再次要在工作机制上不断探索创新；最后应当完善取保候审制度,保证功能目标的实行。在起诉程序中存在法定不起诉适用范围不全面、相对不起诉适用条件模糊、适用存疑不起诉存在分歧、不起诉种类有待补充等问题。针对存在的问题,应当扩大法定不起诉和相对不起诉适用范围、增加和解不起诉制度、实行快速办理轻微刑事案件机制等。在抗诉程序中存在对履行审判监督职能认识不够、存在消极的抗诉行使心理、忽视刑事政策指导、自身监督能力不强等问题。针对存在的问题,应当加强对量刑畸重畸轻案件的控诉、加强对适用缓刑不当案件的抗诉、加强对减免刑罚不当的案件的抗诉、积极推进公诉案件量刑建议工作。
[Abstract]:In order to cope with the change of the situation of public security, our country has put forward the criminal policy of the new period-------------------------- This is a milestone in the field of the criminal rule of law in China, and has become an important means and policy guarantee for the construction of the socialist harmonious society in the new period in China. However, because the research of the criminal investigation of the leniency in the present stage is much more in the theoretical angle, and the combination of the judicial practice is less, in particular the three key operations of the procuratorial organ--the investigation and supervision, the prosecution and the anti-prosecution are less, The application of the criminal policy of the leniency and the criminal policy in the procuratorial work is affected. The historical origin of the criminal policy of leniency and justice in our country is the "to be in one's life" of the state of the country, and the direct source is the criminal administration of the combination of the punishment and the leniency. The broad and strict criminal policy is composed of two parts, namely, "wide" and "strict". The "wide" mainly aims at the misdemeanour. The "strict" is for the serious crimes. The contents can be summarized as the "The Yan is strict, when the width is wide, the width is wide, the width is strictly complementary, the width is high, the time of the examination, the width is the main." in combination with the objective reality of China. The criminal policy of leniency and justice should grasp the two original cases. then, the legal principle and the crime of the crime are adapted to the original In particular, the criminal policy of leniency and justice, in particular the "wide" in it, is consistent with the connotation of the spirit of the limitation of the criminal law, and has the economic, the final, the finiteness and the leniency. At present, the political color of the crime in our country is becoming more and more light, and a great deal of crime is the contradiction between people's excessive pursuit of property and the legal way of providing more active property at the present stage, and the contradiction between some neighbors. The change of the crime and the phenomenon of the crime requires that the criminal policy of leniency be applied to distinguish the different situations Don't be treated. Our country is building a harmonious society. It is the current criminal policy that is put forward in this background. It is the democratic rule of law, the fairness and justice, the honesty and the love, the vitality, the stability and the order of the harmonious society. At the same time, at the same time, the present situation of the shortage of judicial resources exists in our country, and there is an urgent need to reasonably allocate the limited division through the criminal policy of leniency and justice. It is of great practical significance and far-reaching significance to punish the crime, protect the human rights, maintain the harmonious stability of the society and promote the justice and efficiency of the judicial system. The historical significance of the procuratorial organs is to be guided by the criminal policy of leniency and justice, and the procedures of investigation, supervision, prosecution and anti-prosecution in the procuratorial work are urgently needed. The procuratorial organ is still in the process of carrying out the criminal policy of leniency and justice. There are many problems. In the investigation and supervision procedure, there is a lag of the judicial idea, the alternative measures are not perfect, the assessment mechanism is pointing to the deviation and the investigation activity is supervised. In the light of the existing problems, the author should first take the correct thought as the guidance and coordinate effectively, and solve the contradiction between the application of the non-catching decision and the assurance lawsuit in the minor criminal case; secondly, the subjective initiative should be played, and the investigation and supervision scope should be enlarged, and the criminal investigation should be supplemented. According to the way of supervision and supervision, the investigation and supervision measures shall be strengthened, and the investigation and supervision shall be put into practice; the innovation shall be continuously explored in the working mechanism; and finally, the system of taking the guarantor pending trial shall be improved, and the function shall be guaranteed. The application of the target is not comprehensive, the application conditions are not comprehensive in the prosecution procedure, the application conditions are vague and the application conditions are not applicable, and there are differences in the application of the suspected non-prosecution, and the type of the non-prosecution is to be determined. In the light of the existing problems, the legal non-prosecution and the relative non-prosecution of the scope of application, the increase of the non-prosecution system of the settlement and the rapid and minor criminal prosecution should be carried out. The case mechanism and so on. In the anti-prosecution procedure, there are not enough awareness of the performance of the judicial supervision function, the negative anti-prosecution exercise psychology, the neglect of the guidance of the criminal policy and the self-supervision ability In view of the problems existing, it is necessary to strengthen the complaint of the case of sentencing and the case of terratism, to strengthen the protest against the case of the case of inappropriate probation, to strengthen the protest against the case of improper punishment, and to actively promote the amount of the public prosecution case.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.3;D925.2

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