论刑期折抵的若干问题

On Some Problems Concerning Offsetting a Prison Term

刑期折抵是一项重要的刑法制度,可被折抵的"刑期"只能是宣告刑;从刑期与刑种的关系看,刑期折抵被折抵的刑种只能是有刑期的自由刑或有数额的财产刑或有刑期的资格刑。刑期折抵以"先行羁押"的客观存在为前提,即,在法定判决(或新判决)执行前被告人有被强制剥夺或限制人身自由的事实;此外,适用刑期折抵的条件还有,被强制剥夺或限制人身自由的事实理由又被刑事追诉和判处某些法定刑罚,并且,它与刑事追诉之间有密切的关联性。

Offsetting a prison term is a significant criminal institution, and the offset prison term can only be the pronounced sentence. From the angle of the relationship of sentence and types of punishment, the offset type of punishment of the institution of offsetting a prison term can only be the punishment against freedom with a prison term or property-oriented penalties with a certain amount or punishment against competence with a prison term. The institution takes the objective existence of detention de bene esse as its premise, namely, the facts that the accused experienced being deprived of personal freedom or personal freedom being restricted before legal sentence exist; besides, the other conditions applied to the institution includes the causes for the facts above-mentioned are under criminal prosecution and being sentenced by some legal punishment ,furthermore, it has a close relationship with criminal prosecution.