我國未成年人犯罪量刑規(guī)范化適用問題研究
發(fā)布時間：2019-01-21 17:23
【摘要】：隨著未成年人犯罪日益嚴(yán)重，對其犯罪后的量刑適用問題也逐漸成為困擾司法審判實踐的一大難題。盡管我國現(xiàn)行相關(guān)法律和司法解釋早已確立了對未成年人犯罪量刑的指導(dǎo)思想和處罰原則，2010年最高人民法院也適時出臺了《人民法院量刑指導(dǎo)意見》（以下簡稱《量刑指導(dǎo)意見》），之后兩高和公安、國家安全、司法三部委聯(lián)合發(fā)文《關(guān)于規(guī)范量刑程序若干問題的意見（試行）》，奠定了量刑規(guī)范化改革的法律基礎(chǔ)，也拉開了刑事司法改革的序幕�！读啃讨笇�(dǎo)意見》對十五種常見犯罪中的常用量刑情節(jié)進(jìn)行了詳細(xì)規(guī)范，并用以指導(dǎo)刑事審判中的量刑適用，但在未成年人犯罪量刑規(guī)范化適用上仍有很多問題。隨著改革的逐漸深入，一些需要及時予以闡明澄清的分歧突顯出來，成為亟需引導(dǎo)和處理的現(xiàn)實難題。 在司法實踐中，未成年犯的量刑適用是一項極其復(fù)雜的系統(tǒng)工程，雖然改革之初確實取得一定的成績，，法官濫用自由裁量權(quán)的現(xiàn)象得到了一定的規(guī)范和改善，但量刑是否適當(dāng)、個案是否合理仍是熱議的焦點，因此科學(xué)合理的量刑適用不僅對已犯罪的未成年人有特殊預(yù)防作用，對一般預(yù)防更具有重大現(xiàn)實意義。筆者在文中，以我國未成年人犯罪量刑規(guī)范化適用的現(xiàn)存問題為出發(fā)點，通過具體案例深入剖析探討未成年人其原因并就此提出了一些粗淺看法和改進(jìn)的基本進(jìn)路。 本文正文分為三部分：第一部分提出量刑適用依據(jù)缺乏相對性、量刑過程簡單機械和相關(guān)部門溝通協(xié)調(diào)不到位這三大現(xiàn)存主要問題。具體表現(xiàn)在常用量刑情節(jié)不周全、量刑用語無釋明、強奸罪中賠償不作為從輕處罰量刑情節(jié)、過分依賴《量刑指導(dǎo)意見》、電腦替代人腦、單處罰金適用少和過分抑制自由裁量權(quán)、偵查部門重定罪忽視量刑情節(jié)證據(jù)的收集、公訴機關(guān)未作好承接工作和辯護(hù)意見的極端化等諸多方面。第二部分是針對問題進(jìn)行原因解析，進(jìn)而指明立法指導(dǎo)缺失、審判人員自身素質(zhì)和監(jiān)督機關(guān)的監(jiān)督錯位是造成上述問題的主要原因，文章從忽視未成年人犯罪特殊性、不重視被害人因素、缺乏有針對性的指導(dǎo)文件和適用標(biāo)準(zhǔn)及對量刑情節(jié)功能限度無規(guī)定，到法官自身素質(zhì)良莠不齊、基層院對上級法院的盲從，再到量刑建議書、量刑建議權(quán)等多方面對三大原因進(jìn)行解析。第三部分則針對所述問題與原因，從實際出發(fā)并借鑒國際成功經(jīng)驗，提出設(shè)專章指導(dǎo)量刑適用包括制定專門的指導(dǎo)性文件、規(guī)范指導(dǎo)適用標(biāo)準(zhǔn)、完善自身素質(zhì)建設(shè)及在偵查、審查起訴和審判三階段規(guī)范未成年人犯罪量刑程序三大改進(jìn)的基本進(jìn)路。
[Abstract]:With the increasing seriousness of juvenile delinquency, the application of sentencing after the crime has gradually become a major problem puzzling the judicial practice. Although the current relevant laws and judicial interpretations of our country have already established the guiding ideology and the principle of punishment for juvenile delinquents, In 2010, the Supreme people's Court also issued the "sentencing guidance of the people's Court" (hereinafter referred to as "sentencing guidance"), followed by the two high levels, public security, and national security. The three ministries and commissions of the judiciary jointly issued opinions on a number of issues concerning the standardization of sentencing procedures (on a trial basis), which laid the legal foundation for the reform of the standardization of sentencing. It also kicked off the prelude to the reform of criminal justice. The sentencing guidance provides a detailed specification of the common sentencing circumstances among the 15 common crimes, and is used to guide the application of sentencing in criminal trials. However, there are still many problems in the standardized application of juvenile delinquency sentencing. With the deepening of the reform, some differences that need to be clarified and clarified in time are highlighted, and become a practical problem in urgent need of guidance and treatment. In judicial practice, the sentencing application of juvenile offenders is an extremely complex systematic project. Although certain achievements have been made at the beginning of the reform, the phenomenon of judges abusing discretion has been regulated and improved, but the sentencing is appropriate or not. Whether the case is reasonable or not is still the focus of heated discussion, so the scientific and reasonable application of sentencing not only has a special preventive role for minors who have committed crimes, but also has great practical significance for general prevention. In this paper, based on the existing problems in the standardization and application of sentencing of juvenile delinquency in China, the author makes a thorough analysis of the causes of juvenile delinquency through specific cases and puts forward some superficial views and basic ways of improvement. The text of this paper is divided into three parts: the first part puts forward three main existing problems: lack of relativity of applicable basis of sentencing, simple machinery of sentencing process and inadequate communication and coordination between relevant departments. The concrete manifestation is that the circumstances of sentencing in common use are not comprehensive, the terms of sentencing are not explained, compensation in the crime of rape is not regarded as a light punishment of sentencing circumstances, too much reliance on "sentencing guidance", computers to replace the human brain, Only fine is applied to less and too much restraining discretion, the investigation department neglects the collection of evidence of sentencing circumstances, the public prosecution fails to undertake the work well and the opinion of defense is extreme, and so on. The second part is to analyze the causes of the above problems, and then point out that the lack of legislative guidance, the quality of the judges themselves and the supervision dislocation of the supervisory organs are the main reasons for the above problems. The article neglects the particularity of juvenile delinquency. They do not attach importance to the factors of victims, lack targeted guidance documents and applicable standards, and have no provisions on the functional limits of sentencing circumstances, to the varying qualities of the judges themselves, to the blind adherence of the grass-roots courts to the higher courts, and then to the sentencing proposals. Sentencing suggestion right and so on many aspects to carry on the analysis to the three big reasons. In the third part, according to the problems and reasons mentioned above, from the practical point of view and drawing lessons from the international successful experience, the author puts forward a special chapter to guide the application of sentencing, including the establishment of special guidance documents, the standardization of guiding applicable standards, the improvement of the quality construction of oneself and the investigation in the field of investigation. Examining the three stages of prosecution and trial and standardizing the sentencing procedure of juvenile delinquency.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.2;D924.13
本文編號：2412860
[Abstract]:With the increasing seriousness of juvenile delinquency, the application of sentencing after the crime has gradually become a major problem puzzling the judicial practice. Although the current relevant laws and judicial interpretations of our country have already established the guiding ideology and the principle of punishment for juvenile delinquents, In 2010, the Supreme people's Court also issued the "sentencing guidance of the people's Court" (hereinafter referred to as "sentencing guidance"), followed by the two high levels, public security, and national security. The three ministries and commissions of the judiciary jointly issued opinions on a number of issues concerning the standardization of sentencing procedures (on a trial basis), which laid the legal foundation for the reform of the standardization of sentencing. It also kicked off the prelude to the reform of criminal justice. The sentencing guidance provides a detailed specification of the common sentencing circumstances among the 15 common crimes, and is used to guide the application of sentencing in criminal trials. However, there are still many problems in the standardized application of juvenile delinquency sentencing. With the deepening of the reform, some differences that need to be clarified and clarified in time are highlighted, and become a practical problem in urgent need of guidance and treatment. In judicial practice, the sentencing application of juvenile offenders is an extremely complex systematic project. Although certain achievements have been made at the beginning of the reform, the phenomenon of judges abusing discretion has been regulated and improved, but the sentencing is appropriate or not. Whether the case is reasonable or not is still the focus of heated discussion, so the scientific and reasonable application of sentencing not only has a special preventive role for minors who have committed crimes, but also has great practical significance for general prevention. In this paper, based on the existing problems in the standardization and application of sentencing of juvenile delinquency in China, the author makes a thorough analysis of the causes of juvenile delinquency through specific cases and puts forward some superficial views and basic ways of improvement. The text of this paper is divided into three parts: the first part puts forward three main existing problems: lack of relativity of applicable basis of sentencing, simple machinery of sentencing process and inadequate communication and coordination between relevant departments. The concrete manifestation is that the circumstances of sentencing in common use are not comprehensive, the terms of sentencing are not explained, compensation in the crime of rape is not regarded as a light punishment of sentencing circumstances, too much reliance on "sentencing guidance", computers to replace the human brain, Only fine is applied to less and too much restraining discretion, the investigation department neglects the collection of evidence of sentencing circumstances, the public prosecution fails to undertake the work well and the opinion of defense is extreme, and so on. The second part is to analyze the causes of the above problems, and then point out that the lack of legislative guidance, the quality of the judges themselves and the supervision dislocation of the supervisory organs are the main reasons for the above problems. The article neglects the particularity of juvenile delinquency. They do not attach importance to the factors of victims, lack targeted guidance documents and applicable standards, and have no provisions on the functional limits of sentencing circumstances, to the varying qualities of the judges themselves, to the blind adherence of the grass-roots courts to the higher courts, and then to the sentencing proposals. Sentencing suggestion right and so on many aspects to carry on the analysis to the three big reasons. In the third part, according to the problems and reasons mentioned above, from the practical point of view and drawing lessons from the international successful experience, the author puts forward a special chapter to guide the application of sentencing, including the establishment of special guidance documents, the standardization of guiding applicable standards, the improvement of the quality construction of oneself and the investigation in the field of investigation. Examining the three stages of prosecution and trial and standardizing the sentencing procedure of juvenile delinquency.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.2;D924.13
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本文編號：2412860
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