| 犯罪控制的惩罚主义及其效果 |
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| 引用本文： | 樊文. 犯罪控制的惩罚主义及其效果[J]. 法学研究, 2011, 0(3): 112-137 |
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| 作者姓名： | 樊文 |
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| 作者单位： | 中国社会科学院法学研究所 |
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| 基金项目： | 本文是作者主持的2009年度人力资源和社会保障部留学归国人员择优资助项目“严重犯罪的量刑”之阶段性成果。 |
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| 摘 要： | 1979年以来我国刑事立法和司法忽视或遗忘了刑法的特征与内在价值，高估了刑法影响人的行为的可能性，刑法一直保持着在功能化方向上的惯性，刑罚结构和刑罚适用面临着重刑主义的突出问题。我国的犯罪控制存在着惩罚主义的结构特征，然而惩罚主义的意愿和努力，并没能有效遏制犯罪规模和犯罪的总体严重程度迅猛发展的势头。在刑事政策和刑罚体系的主导思想没有做出重大调整前，刑罚轻缓化的改革仍然任重道远。
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| 关 键 词： | 惩罚主义 刑法功能化 刑罚结构 犯罪控制 |
Punitivism in Crime Control and its Effect |
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| Fan Wen. Punitivism in Crime Control and its Effect[J]. Chinese Journal of Law, 2011, 0(3): 112-137 |
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| Authors: | Fan Wen |
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| Abstract: | The nature and internal value of criminal law determines that it is the last resort to social control and it can only shoulder important and restrictive tasks. As for social control, it cannot be said that criminal law has no effect at all, but pure function-orientated criminal law is certainly not ideal for effective social control. However, the criminal legislation and practice since 1979 in China have either ignored or abandoned this understanding of criminal law. From the characteristics of criminal legislation and practice it can be seen that Chinese criminal policy has obviously overestimated the possibility that criminal law can influence human action. Criminal law has kept the inertial habit of functionalization.Criminal policy should be based on the reliable empirical evidence of criminological research so that a just and reasonable new goal should be set, which is restricted by those basic principles such as culpability, rule of law and humanity. Before such reasonable criminal policy is established and the absolute theory of punishment directing punishment system and structure is thoroughly adjusted, the striking problem of harsh punishment in the field of criminal legislation, justice and enforcement will continue. Crime control in China has the structural characteristic of punitivism.After analyzing relevant data, it can be found that punitivism is ineffective to reduce the increasing crime rate and control the seriousness of crimes as a whole. Harsh punishment cannot prevent crimes. On the contrary, it will accumulate the obstacles to the rehabilitation of the offenders, lead to the formation of crime-conducive environment and the reoffending of these offenders. Punitive criminal policy, punishment system and practice will cause the citizens to pay high cost for security. The criminal ideal and mode of severe punishment should be ended in the age of respecting human rights and advocating humanity. |
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| Keywords: | punitivism functionalization of criminal law structure of criminal punishment crime control |
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