论刑事法定责任年龄降低

发布时间：2018-12-30 20:41

【摘要】：近年来,未成年人实施的社会危害行为愈发增多,大多数未成年人在实施危害行为时主观恶性大,存在共同预谋的情形,且行为手段恶劣、危害性程度深。从立法层面看,现阶段我国社会背景与立法之初相比发生了很大的变化,意味着之前所确定的刑事责任年龄所考虑的因素发生了改变。从司法层面看,很多未成年人具备对社会危害行为的辨认和控制能力,在其实施违法行为后,因其未达刑事责任年龄而无法被追究刑事责任。实践中,对行为人的教育、改造效果并不理想,复归社会后的再犯率较高。为此,理论和实践中降低刑事责任年龄的呼声高涨。我国《刑法》对刑事责任年龄规定的起点偏高,一味地对未成年人社会危害行为采取容忍态度并不可取,也无法满足预防和惩罚犯罪的需要。故而,从降低刑事责任年龄的必要性、正当性、可行性三个方面进行探讨。首先,未成年人犯罪形势严峻,中小学校园暴力事件影响恶劣,网络时代社会危害行为加剧等状况均体现了降低刑事责任年龄的必要性;其次,从事理和法理两个层面突出降低刑事责任年龄具有正当性,符合现实状况和理论要求;最后,因为社会公众对未成年人处罚态度的转变及我国刑罚轻缓化和行刑社会化的等思想观念、刑罚理念的革新,所以降低刑事责任年龄在当前社会环境下具有可行性。完善我国《刑法》对刑事责任年龄的规定,在刑事责任年龄降低后还需要一些配套措施来确保制度能够有效实施。参考国外先进的立法技术,提出将恶意补足年龄的思想纳入刑事立法,进一步完善社会调查制度,确定针对未成年人的保安处分、犯罪复权制度等有利于未成年犯罪人复归社会的配套措施。
[Abstract]:In recent years, the number of social harm behaviors carried out by minors is increasing. Most of the minors are subjective and malignant when they carry out the harm behavior, and there are common premeditated situations, and the behavior means are bad, the degree of harmfulness is deep. From the legislative point of view, the social background of our country has changed a lot compared with the beginning of legislation, which means that the factors considered by the criminal responsibility age have changed. From the judicial point of view, many minors have the ability to identify and control the social harm behavior. After they have committed the illegal acts, they can not be investigated for criminal responsibility because they have not reached the age of criminal responsibility. In practice, the education of the perpetrators, the effect of reform is not ideal, after the return to society, the rate of recidivism is higher. Therefore, in theory and practice, the voice of lowering the age of criminal responsibility is rising. The criminal law of our country has a high starting point for the age of criminal responsibility. It is not desirable to blindly adopt a tolerant attitude towards the social harm behavior of minors, nor can it meet the need of preventing and punishing crimes. Therefore, this paper discusses the necessity, legitimacy and feasibility of lowering the age of criminal responsibility. Firstly, the situation of juvenile delinquency is severe, the influence of violence in primary and secondary schools is bad, the social harm behavior intensifies in the network era, and so on all reflect the necessity of lowering the age of criminal responsibility. Secondly, it is legitimate to reduce the age of criminal responsibility at the two levels of theory and theory, which accords with the actual situation and theoretical requirements. Finally, it is feasible to reduce the age of criminal responsibility in the current social environment because of the transformation of the public attitude towards juvenile punishment, the ideological concept of punishment mitigation and socialization of execution in our country, and the innovation of penalty concept. When the age of criminal responsibility is lowered, some necessary measures are needed to ensure the effective implementation of the system. Referring to advanced foreign legislative techniques, it is proposed to incorporate the idea of malicious supplementary age into criminal legislation, further improve the social investigation system, and determine security measures against minors. The system of reversion of crime and other supporting measures conducive to the return of minor offenders to society.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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