隐性双轨制:刑法中保安处分的教义学阐释

A Dogmatic Analysis on Security Measures in Current Criminal Code

我国现行法律中虽无保安处分的概念,但在刑法中已实质性地存在保安处分,其与刑罚共同构成刑法所规定的法律后果,由此形成"隐性双轨制"的格局。对保安处分规范的识别,首先应从与罪责的关系上、目的与功能的差异上明晰刑罚与保安处分的基本界分,进而从法律特征上区分刑罚规范与保安处分规范,最终将现行刑法中的保安处分措施"挖掘"出来。澄清现行刑法中保安处分措施的性质和法律地位,有利于确保这类措施的正当适用,同时也有利于保障个人的基本权利免受不当干涉。

There is no legal term of security measures in the current legal system of China, however, there are legal norms with the nature of security measure in Chinese criminal law. In order to identify the legal norms of security measures provided in the criminal code, the difference between the penalty norms and the security measures norms should be clarified by defining their relationship with responsi- bility and their respective aim and function. The apphcation of security measures is not relevant to the responsibility, but based on the dangerousness of applicable individuals. If retribution is considered as one of the comprehensive goals or functions of criminal penalty, security measures can be distin- guished from the former according to its different goal and function. Therefore, if a legal norm provided by the criminal code can be applied to limit or deprive the rights or interests of an individual who has committed a crime or a criminal illegal act, and its sub- stantial ground is his/her dangerousness other than responsibility, such a norm should be considered as one with the nature of security measure. Judged by their normative characteristics, specific security measures in current Chinese criminal law include sheltering and rehabilitating, compulsory medical treatment on insane persons without ability of taking criminal responsibility, deportation, injunction order, compulsive laboring, criminal confiscation ing parole. , supervision during probation, and supervision dur- The existence of a framework of invisible Zweispurigkeit in current criminal code would have many effects on criminal law theory. For the theoretical system, security measures should be treated as a basic concept and construct the legal result together with the criminal penalty of the criminal law. Besides, the concurrent application, retrospective effect, proportionality, declaration of such meas- ures should be discussed specifically in dogmatic field.