【摘要】：我國刑法關(guān)于假釋撤銷條件的規(guī)定,沒有具體區(qū)分新罪是故意犯罪還是過失犯罪、漏罪發(fā)生的時間以及是嚴重違法違規(guī)還是輕微違法違規(guī),對撤銷條件的規(guī)定過于嚴格。刑法也沒有對假釋撤銷“法定程序”的具體內(nèi)容作出明假確的規(guī)定,其他的刑事程序法也沒有關(guān)于撤銷程序具體內(nèi)容的規(guī)定,而且對于再審中的假釋撤銷問題也很少涉及。因此,需要對我國的假釋撤銷制度進一步的研究。本文共五個部分,約35000字。第一部分,我國假釋撤銷的依據(jù)。首先,假釋撤銷符合假釋的本質(zhì),分別從假釋恩惠說、假釋權(quán)利說、假釋刑罰執(zhí)行說、假釋刑罰形態(tài)說的角度,分析了撤銷假釋與假釋的本質(zhì)是一致的。其次,假釋撤銷也有利于假釋功能的發(fā)揮,撤銷假釋既是對罪犯的一種懲罰也是對其他被假釋人的一種警示。再次,對于沒有徹底悔改的被假釋人,撤銷假釋對于教育、改造罪犯和預防犯罪具有重要的意義,符合刑罰的目的。然后,又從法律上論述了我國假釋撤銷的正當性。首先,我國刑法有關(guān)于假釋撤銷的規(guī)定,對不符合相關(guān)規(guī)定的被假釋人,我國司法機關(guān)有權(quán)對其撤銷假釋。再次,假釋撤銷與我國“寬嚴相濟”的刑事政策相適應,對于沒有改造好的假釋犯撤銷假釋正是“嚴”的體現(xiàn)。第二部分,我國假釋撤銷條件的考察。首先,應該具體區(qū)分罪犯所犯新罪的主觀罪過,如果罪犯在考驗期間故意犯罪應該撤銷假釋,過失犯罪的不應該撤銷假釋。新罪是自訴案件的,應該考慮自訴案件是故意犯罪還是過失犯罪,如果自訴案件是故意犯罪,不管自訴人有沒有告訴都應該對罪犯撤銷假釋,如果自訴案件是過失犯罪的不應該撤銷假釋。其次,在考驗期間發(fā)現(xiàn)罪犯有漏罪的,不應該撤銷假釋。最后,罪犯僅僅是輕微違法違規(guī)時不應該撤銷假釋,只有罪犯嚴重違法違規(guī)的才應該撤銷假釋。第三部分,我國審判監(jiān)督程序中的假釋撤銷問題考察。假釋考驗期滿以后,假釋已經(jīng)消滅,原有判決再審改判的不應該撤銷假釋,建議對正當?shù)姓`的假釋裁定不應該進行重新審理,有利于保障被假釋人既定的權(quán)益和實現(xiàn)程序公正。第四部分,我國假釋撤銷后的期限折抵問題考察。假釋被撤銷以后,先前經(jīng)過的考察時間不應該折抵刑期,但在考驗期間已經(jīng)執(zhí)行的附加剝奪政治權(quán)利期限應仍然有效。第五部分,我國假釋撤銷程序的考察。下級法院撤銷上級法院作出的假釋裁定不合理,允許對法院做出撤銷的裁定可以上訴,以協(xié)調(diào)刑事訴訟法中的審級問題,大多數(shù)被假釋人違法、違規(guī)行為的發(fā)生地和原假釋裁定的法院所在地并不一致,容易增加辦理案件的難度。對于此種情形,建議對由考察機關(guān)所在地的基層人民法院管轄,管轄新罪的法院撤銷原裁判法院做出的假釋裁定缺乏告知程序,建議管轄新罪的法院撤銷假釋前應向告知原裁判法院,撤銷假釋后應向原裁判法院備案。
[Abstract]:The provisions of the criminal law of our country on the conditions for the withdrawal of parole do not distinguish whether the new crime is intentional crime or negligence crime, the time when the missed crime occurs and whether it is a serious violation of the law or a minor violation of the law, and the provisions on the conditions of withdrawal are too strict. The criminal law also does not make explicit provisions on the specific content of the "legal procedure" of parole withdrawal, other criminal procedure laws also do not have provisions on the specific contents of the withdrawal procedure, and the issue of parole withdrawal in retrial is rarely involved. Therefore, it is necessary to further study the parole withdrawal system in our country. There are five parts of this article, about 35000 words. The first part is the basis of parole withdrawal in our country. First of all, parole withdrawal accords with the essence of parole. From the point of view of parole grace theory, parole right theory, parole penalty execution theory and parole penalty form theory, this paper analyzes that the essence of parole withdrawal and parole is consistent. Secondly, parole cancellation is also conducive to the play of parole function, the abolition of parole is not only a punishment for criminals, but also a warning to other parolees. Thirdly, for parolees who have not completely repented, the abolition of parole is of great significance to education, reform of criminals and crime prevention, and is in line with the purpose of penalty. Then, it discusses the legitimacy of parole withdrawal in China from the legal point of view. First of all, there are provisions on parole cancellation in the criminal law of our country. For parolees who do not conform to the relevant provisions, the judicial organs of our country have the power to cancel parole. Thirdly, the withdrawal of parole is in line with the criminal policy of "combining leniency and strictness" in our country, and the withdrawal of parole for unreformed parolee prisoners is the embodiment of "strict". The second part is the investigation of the conditions of parole withdrawal in China. First of all, we should make a specific distinction between the subjective crimes committed by criminals. If the criminals intentionally commit crimes during the test period, parole should not be revoked, and those who commit negligence crimes should not be released on parole. The new crime is a private prosecution case, we should consider whether the private prosecution case is intentional crime or negligence crime, if the private prosecution case is intentional crime, whether the private prosecutor has told or not should withdraw the parole of the criminal, if the private prosecution case is a negligence crime, the parole should not be revoked. Second, parole should not be revoked if a criminal is found to have missed a crime during the test. Finally, parole should not be revoked when criminals are only minor violations, and only those who commit serious violations of the law should withdraw parole. The third part is the investigation of parole withdrawal in the trial supervision procedure of our country. After the expiration of the parole test, parole has been eliminated, and the original sentence should not be rescinded. It is suggested that the proper but erroneous parole decision should not be retried, which is beneficial to the protection of the established rights and interests of the parolee and the realization of procedural justice. The fourth part, the investigation of the discount of the time limit after the withdrawal of parole in our country. After parole is revoked, the previous inspection time should not be deducted from the sentence, but the additional period of deprivation of political rights that has been implemented during the test period shall remain in force. The fifth part, the investigation of parole withdrawal procedure in our country. It is unreasonable for the lower court to rescind the parole decision made by the higher court, and the decision allowed to be revoked by the court may be appealed in order to coordinate the trial level issues in the criminal procedure law. Most of the parolees break the law, the place where the violation occurred is inconsistent with the place of the court where the original parole decision was made, and it is easy to increase the difficulty of handling the case. In this case, it is suggested that the court under the jurisdiction of the grass-roots people's court where the inspection organ is located lacks the notification procedure for abolishing the parole decision made by the original Magistrates' Court. It is suggested that the court in charge of the new crime should inform the original Magistrates Court before abolishing parole, and should file with the original Magistracy after abolishing parole.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D924
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本文編號：2509413