死刑限制适用论
发布时间：2019-04-02 19:24
【摘要】：死刑存废争论由来已久,近年来平反的诸多冤假错案,使得这一争论更加甚嚣尘上。毋庸置疑,我国尚不具备完全废除死刑的条件,但从陆续颁布的《刑法修正案(八)》、《刑法修正案(九)》可见我们国家在死刑制度上,积极审视以及努力变革。从合理性和现实性分析限制死刑制度,笔者认为以目前死刑被废除是不现实的,但进一步死刑被限制适用在中国是必要的,也是切实可行的。我们应该从限制死刑适用的正当性及对象角度出发,从立法、司法及监督方面着手,从而严格控制死刑现阶段在我国的适用。本文分为三个部分:第一部分,分析我国死刑限制适用的正当性,本章认为死刑限制符合我国刑法的目的性,对刑法总则对死刑的限制适用规定加以明晰探讨,并对最新颁布的《刑法修正案(九)》中废除死刑的部分条例加以合理分析;第二部分,本章认为我国的刑罚结构目前仍处于以死刑和自由刑为中心的重刑结构之列,而这种刑法结构导致目前我国死刑限制的局面极为尴尬。限制适用死刑对象分析、限制适用死刑标准分析、死缓制度与死刑限制适用的冲突、刑法结构不合理对死刑限制适用产生消极影响;第三部分为指导建议,本章认为我国刑法贯彻保留死刑、坚决少杀、防止错杀的政策,适用死刑必须非常慎重,把判处死刑立即执行的范围缩小到最低限度。针对第二部分提出的冲突与消极影响,本章从完善死刑限制适用原则、完善死刑限制适用对象、扩大死缓制度的适用范围、调整刑罚结构以及建立死刑限制适用的监督体系方面进行分析,对完善我国死刑限制适用制度提出几点建议。笔者运用诸多学术研究方法,得出本文结论,现阶段,我国司法环境决定无法废除死刑,为此我们要在实践中,尽量减少和限制死刑,这是我们需要解决的,通过建立健全相关的措施,我们需要限制死刑,在本文中,笔者基于前人的研究结果,结合自己的看法,提出了几个较为合理的观点,笔者的愿望是希望我国死刑我国的死刑限制适用制度得到不断完善,甚至在将来得以废除死刑。
[Abstract]:Death penalty has a long-standing debate, in recent years, many wrongs and wrongs, make this argument even more. There is no doubt that our country still does not have the condition of abolishing the death penalty completely, but from the Criminal Law Amendment (8) and the Criminal Law Amendment (9) promulgated in succession, we can see that our country actively examines and strives to reform the death penalty system. From the analysis of rationality and reality, the author thinks that it is unrealistic to abolish the death penalty at present, but it is necessary and feasible to restrict the application of death penalty in China. We should start from the angle of restricting the legitimacy and object of the application of the death penalty, and proceed from the aspects of legislation, judicature and supervision, so as to strictly control the application of the death penalty at the present stage in our country. This article is divided into three parts: the first part, analyzes the legitimacy of the application of the death penalty restriction in our country, this chapter thinks that the death penalty restriction conforms to the purpose of our country's criminal law, and makes a clear discussion on the application provisions of the general provisions of the criminal law to the restriction on the death penalty. And to the latest Criminal Law Amendment (9) of the abolition of the death penalty in some regulations to make a reasonable analysis; In the second part, this chapter thinks that the penalty structure of our country is still in the heavy punishment structure centered on the death penalty and free punishment, and this kind of criminal law structure causes the situation of the death penalty restriction in our country to be very awkward at present. The analysis of the object of restricting the application of the death penalty, the analysis of the standard of restricting the application of the death penalty, the conflict between the system of reprieve of death and the application of the restriction of the death penalty, the unreasonable structure of the criminal law The third part is the guiding suggestion, this chapter holds that the criminal law of our country carries out the policy of retaining the death penalty, resolutely fewer killing and preventing the wrong killing. The application of the death penalty must be very careful, and the scope of the immediate execution of the death penalty must be narrowed to a minimum. In view of the conflict and negative influence put forward in the second part, this chapter from perfecting the application principle of the death penalty restriction, perfecting the application object of the death penalty restriction, expanding the scope of application of the death penalty reprieve system, This paper analyzes the adjustment of penalty structure and the establishment of supervision system for the application of death penalty restriction, and puts forward some suggestions to perfect the application system of death penalty restriction in China. Using many academic research methods, the author draws the conclusion that at the present stage, the judicial environment in our country decides that the death penalty cannot be abolished. Therefore, we should reduce and limit the death penalty as far as possible in practice, which is what we need to solve. Through the establishment and improvement of related measures, we need to limit the death penalty. In this paper, based on the results of previous research, combined with my own views, I put forward several more reasonable points of view. The author hopes that our country's death penalty restriction system will be improved and even abolished in the future.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2018
【分类号】：D924.1
本文编号：2452853
[Abstract]:Death penalty has a long-standing debate, in recent years, many wrongs and wrongs, make this argument even more. There is no doubt that our country still does not have the condition of abolishing the death penalty completely, but from the Criminal Law Amendment (8) and the Criminal Law Amendment (9) promulgated in succession, we can see that our country actively examines and strives to reform the death penalty system. From the analysis of rationality and reality, the author thinks that it is unrealistic to abolish the death penalty at present, but it is necessary and feasible to restrict the application of death penalty in China. We should start from the angle of restricting the legitimacy and object of the application of the death penalty, and proceed from the aspects of legislation, judicature and supervision, so as to strictly control the application of the death penalty at the present stage in our country. This article is divided into three parts: the first part, analyzes the legitimacy of the application of the death penalty restriction in our country, this chapter thinks that the death penalty restriction conforms to the purpose of our country's criminal law, and makes a clear discussion on the application provisions of the general provisions of the criminal law to the restriction on the death penalty. And to the latest Criminal Law Amendment (9) of the abolition of the death penalty in some regulations to make a reasonable analysis; In the second part, this chapter thinks that the penalty structure of our country is still in the heavy punishment structure centered on the death penalty and free punishment, and this kind of criminal law structure causes the situation of the death penalty restriction in our country to be very awkward at present. The analysis of the object of restricting the application of the death penalty, the analysis of the standard of restricting the application of the death penalty, the conflict between the system of reprieve of death and the application of the restriction of the death penalty, the unreasonable structure of the criminal law The third part is the guiding suggestion, this chapter holds that the criminal law of our country carries out the policy of retaining the death penalty, resolutely fewer killing and preventing the wrong killing. The application of the death penalty must be very careful, and the scope of the immediate execution of the death penalty must be narrowed to a minimum. In view of the conflict and negative influence put forward in the second part, this chapter from perfecting the application principle of the death penalty restriction, perfecting the application object of the death penalty restriction, expanding the scope of application of the death penalty reprieve system, This paper analyzes the adjustment of penalty structure and the establishment of supervision system for the application of death penalty restriction, and puts forward some suggestions to perfect the application system of death penalty restriction in China. Using many academic research methods, the author draws the conclusion that at the present stage, the judicial environment in our country decides that the death penalty cannot be abolished. Therefore, we should reduce and limit the death penalty as far as possible in practice, which is what we need to solve. Through the establishment and improvement of related measures, we need to limit the death penalty. In this paper, based on the results of previous research, combined with my own views, I put forward several more reasonable points of view. The author hopes that our country's death penalty restriction system will be improved and even abolished in the future.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2018
【分类号】：D924.1
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相关硕士学位论文 前1条
1 张磊;死刑功能论[D];河南大学;2004年
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