论罚金刑的理论重构

On the Theoretic Reconstruction of Pecuniary Penalty

以罚金刑执行难的现状为逻辑起点,提出了重构罚金刑理论的基本思路:即将罚金刑定位于主刑系统;增设“犯罪人的经济状况”为罚金刑的裁量依据;建议对无执行能力的人一律易科社会服务令;设立财产调查和附卷移送制度;完善财产先行扣押和查封制度;制定《关于追缴罚金的具体办法》;依法明确“拒不执行人民法院判决罪”中的“判决”包括罚金刑判决。

Problems in applying pecuniary penalty have puzzled the judicial department and affected the practice of pecuniary penalty. This paper, starting with the difficulties in applying pecuniary penalty, puts forward some suggestions in reconstructing the theory of pecuniary penalty, including putting pecuniary penalty into principal penalty system, adding the economic situation of criminal as the base of judgment, suggesting social service for the people without executive ability, setting up property investigation and appendix transfer system, perfecting the system of property detaining and sealing up in advance ,establishing material ways of fine repayment, and making it clear that judgments in ＂crime of repudiate of judgments of courts＂ should include sentence of pecuniary penalty. It is hoped that these suggestions could give theoretical support for the application of pecuniary penalty.