论我国罚金刑制度现状与完善
发布时间：2018-08-22 13:57
【摘要】：近年来,我国罚金刑的适用率虽逐步提升,但其在制度建设方面还存在不少问题,学界与实务界要求改革的呼声也很高,本文以罚金刑制度为研究对象,梳理其在刑罚体系中的地位、范围、方式、数额、裁量依据、执行效果等环节存在的问题,进而提出完善建议,以期能够为罚金刑制度建设尽一名刑事法官微薄之力。本文共分为三个部分,第一部分介绍罚金刑的概念、特征、功能,正确认识理解这些问题,是研究罚金刑制度的前提。比如在罚金刑的诸多功能中,笔者认为首要功能是惩罚,而不是威慑,这就决定了在第三章的完善建议中,笔者坚持认为要在轻罪中普遍配置罚金刑,以实现罚金刑抗制轻罪的作用,同时减少主要体现威慑作用的并科适用方式。第二部分是我国罚金刑制度现状,包括罚金刑处于附加刑地位,该地位影响其价值发挥及适用效果;适用范围方面,在轻罪和过失犯罪中适用比例较低,导致其抗制轻罪和过失犯罪的作用发挥得不明显;适用方式方面,并科罚金制占据较大比重,罚金刑更多地以主刑生命刑或自由刑的附属品出现;适用数额方面,无限额罚金制占据较高比例,这不仅与罪刑法定原则有一定冲突,而且由于裁判随意性较强,也有违公平原则;裁量依据方面,现行刑法规定未考虑到犯罪人的客观经济条件,很难实现个性化量刑;执行效果方面,由于执行主体不明确。执行程序不规范,我国罚金刑执行到位率很低。第三部分是我国罚金刑制度之完善。我们应该树立符合世界刑罚发展趋势的刑罚理念与价值取向,从理性的、超然的角度看待犯罪行为这一客观社会现象,摒弃刑罚万能理念。法律地位方面,建议将罚金刑上升为主刑;适用范围方面,提高罚金刑在轻罪中的适用比例,并且对过失犯罪均配置罚金刑,国家节省了监管成本,服刑人之间避免了交叉感染,这符合罪刑相适应原则,体现了以人为本的治国理念,也是市场经济不断发展的客观要求;适用方式方面,废除复合罚金制,复合罚金刑看似灵活,实则操作选择性很小,没有保留必要。要减少并科罚金制,并科虽然在扩大罚金刑适用范围方面,曾发挥过积极作用,但也导致罚金刑成为判决的必选项,即便犯罪人根本无力缴纳罚金,法官也只能判决并科罚金。要对法定刑有期徒刑三年以下的自由刑配置选科罚金刑,实现轻罪轻罚的目的。适用数额方面,一方面要废除无限额罚金制,无限额罚金制有违罪刑法定原则,与时代精神不符。另一方面可以尝试引入日额罚金制,罚金刑的判处不仅会更贴合犯罪行为的可谴责程度,实际执行到位率也定会有很大提升。裁量依据方面,法官作出罚金刑数额认定时,充分考虑犯罪人的财产状况,使得罚金刑的强度在犯罪人能承受的强度之内。执行效果方面,设置罚金刑缓刑,使得刑罚体系更为丰富,加强执行机制建设,赋予监察委员会监督罚金刑执行的职能。
[Abstract]:In recent years, although the applicable rate of fine penalty in our country has been gradually improved, there are still many problems in the system construction, and the demands of the academic and practical circles for reform are also very high. This paper takes the fine penalty system as the research object. Combing its position, scope, way, amount, discretion basis, execution effect and other aspects of the existing problems in the penalty system, and then put forward some suggestions to improve the system of fine penalty, in order to contribute to the construction of a criminal judge. This paper is divided into three parts. The first part introduces the concept, characteristics, functions and understanding of these problems, which is the premise of the study of the fine penalty system. For example, among the many functions of the fine penalty, the author thinks that the primary function is punishment, not deterrence, which determines that in the third chapter, the author insists that the fine punishment should be widely allocated in the misdemeanor. In order to achieve the role of fine to resist misdemeanours, and reduce the main deterrent effect of co-disciplinary application. The second part is the present situation of the fine penalty system in our country, including the position of the fine penalty in the supplementary punishment, which affects its value play and application effect; the scope of application is relatively low in the misdemeanor and the negligent crime. As a result, its role in resisting minor crimes and negligent crimes is not obvious; in the aspect of application, the system of concurrent fine occupies a large proportion, and the fine is more likely to appear as an accessory of the principal punishment of life or the penalty of liberty; the applicable amount, The system of unlimited fines occupies a high proportion, which not only conflicts with the principle of legality, but also violates the principle of fairness because of the strong arbitrariness of the adjudication.On the basis of discretion, the current provisions of the criminal law do not take into account the objective economic conditions of the offenders. It is difficult to realize individualized sentencing; the effect of execution is not clear. The execution procedure is not standard, our country fine penalty execution place rate is very low. The third part is the perfection of fine penalty system in our country. We should set up the penalty idea and value orientation which accord with the development trend of the world penalty, treat the criminal behavior as an objective social phenomenon from the angle of reason and transcendence, and abandon the omnipotent idea of penalty. In terms of legal status, it is suggested that the fine penalty should be raised to the main punishment; in the scope of application, the proportion of the fine penalty in misdemeanours should be increased, and the fine penalty should be allocated for all negligent crimes, thus saving the cost of supervision and control by the state. Prisoners avoid cross-infection, which accords with the principle of crime and punishment adaptation, reflects the people-oriented concept of governing the country, is also the objective requirements of the continuous development of the market economy; in terms of application, the system of compound fines should be abolished. The compound fine penalty appears to be flexible, in fact, the operational selectivity is very small, there is no need to retain. In order to reduce the system of concurrent penalty, although it has played an active role in expanding the scope of application of fine, it has also led to the penalty becoming a necessary option for judgment. Even if the offender is unable to pay the fine at all, the judge can only sentence and punish the fine. In order to achieve the purpose of misdemeanor punishment, the free penalty of imprisonment under three years should be allocated to the penalty of selective punishment. In terms of applicable amount, on the one hand, the system of unlimited fines should be abolished, which violates the principle of legally prescribed punishment for a crime and is incompatible with the spirit of the times. On the other hand, we can try to introduce the daily fine system, the fine penalty will not only be more appropriate to the degree of reprehensible crime, but also the actual implementation of the rate will be greatly improved. On the basis of discretion, when the judge makes the determination of the amount of the fine penalty, the property of the offender is fully considered, so that the intensity of the fine penalty is within the strength that the offender can bear. In the aspect of execution effect, we should set up fine penalty probation, make the penalty system richer, strengthen the construction of execution mechanism, and endow the supervisory committee with the function of supervising the execution of fine penalty.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1
本文编号：2197306
[Abstract]:In recent years, although the applicable rate of fine penalty in our country has been gradually improved, there are still many problems in the system construction, and the demands of the academic and practical circles for reform are also very high. This paper takes the fine penalty system as the research object. Combing its position, scope, way, amount, discretion basis, execution effect and other aspects of the existing problems in the penalty system, and then put forward some suggestions to improve the system of fine penalty, in order to contribute to the construction of a criminal judge. This paper is divided into three parts. The first part introduces the concept, characteristics, functions and understanding of these problems, which is the premise of the study of the fine penalty system. For example, among the many functions of the fine penalty, the author thinks that the primary function is punishment, not deterrence, which determines that in the third chapter, the author insists that the fine punishment should be widely allocated in the misdemeanor. In order to achieve the role of fine to resist misdemeanours, and reduce the main deterrent effect of co-disciplinary application. The second part is the present situation of the fine penalty system in our country, including the position of the fine penalty in the supplementary punishment, which affects its value play and application effect; the scope of application is relatively low in the misdemeanor and the negligent crime. As a result, its role in resisting minor crimes and negligent crimes is not obvious; in the aspect of application, the system of concurrent fine occupies a large proportion, and the fine is more likely to appear as an accessory of the principal punishment of life or the penalty of liberty; the applicable amount, The system of unlimited fines occupies a high proportion, which not only conflicts with the principle of legality, but also violates the principle of fairness because of the strong arbitrariness of the adjudication.On the basis of discretion, the current provisions of the criminal law do not take into account the objective economic conditions of the offenders. It is difficult to realize individualized sentencing; the effect of execution is not clear. The execution procedure is not standard, our country fine penalty execution place rate is very low. The third part is the perfection of fine penalty system in our country. We should set up the penalty idea and value orientation which accord with the development trend of the world penalty, treat the criminal behavior as an objective social phenomenon from the angle of reason and transcendence, and abandon the omnipotent idea of penalty. In terms of legal status, it is suggested that the fine penalty should be raised to the main punishment; in the scope of application, the proportion of the fine penalty in misdemeanours should be increased, and the fine penalty should be allocated for all negligent crimes, thus saving the cost of supervision and control by the state. Prisoners avoid cross-infection, which accords with the principle of crime and punishment adaptation, reflects the people-oriented concept of governing the country, is also the objective requirements of the continuous development of the market economy; in terms of application, the system of compound fines should be abolished. The compound fine penalty appears to be flexible, in fact, the operational selectivity is very small, there is no need to retain. In order to reduce the system of concurrent penalty, although it has played an active role in expanding the scope of application of fine, it has also led to the penalty becoming a necessary option for judgment. Even if the offender is unable to pay the fine at all, the judge can only sentence and punish the fine. In order to achieve the purpose of misdemeanor punishment, the free penalty of imprisonment under three years should be allocated to the penalty of selective punishment. In terms of applicable amount, on the one hand, the system of unlimited fines should be abolished, which violates the principle of legally prescribed punishment for a crime and is incompatible with the spirit of the times. On the other hand, we can try to introduce the daily fine system, the fine penalty will not only be more appropriate to the degree of reprehensible crime, but also the actual implementation of the rate will be greatly improved. On the basis of discretion, when the judge makes the determination of the amount of the fine penalty, the property of the offender is fully considered, so that the intensity of the fine penalty is within the strength that the offender can bear. In the aspect of execution effect, we should set up fine penalty probation, make the penalty system richer, strengthen the construction of execution mechanism, and endow the supervisory committee with the function of supervising the execution of fine penalty.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1
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