观护制度之追思:走向适度福利型的控制

Reflection on the Probation System:Moving Towards the Control of Moderate Welfare Mode

观护制度本质在于合理保护未成年人成长,其具有刑罚替代措施的性质。现阶段,受案件中心主义的影响,该制度在中国已经发生功能变异:重惩罚轻保护,重制度设计轻制度落实,因此只能称作半截子观护制度。观护制度建构的必要性,已然成为实践共识。观护内容应当纳入现行考核体系中,但这只是一种权宜之计。走出"福利等于不惩罚"、"福利等于纯粹经济性"的误区,平衡保护未成年人与保护被害人、经济投入与产出回报之间的关系,观护制度完善应遵循适度的福利型控制模式。

As an alternative measure for penalty, the core of the probation system is to protect the juven- iles. At the present stage, this system, being influenced by case centralism, has been altered in terms of func- tion in China, that is, more importance has been attached to penalty rather than to protection. Emphasizing system design yet ignoring its application is an underdeveloped probation system. The necessity of constructing the probation system is a consensus in practice. The contents of this system shall be included in the present e- valuation system, yet it is merely an expedient. The probation system shall systematically improve its welfare-o- riented control mode by getting rid of the blind spots such as ＂welfare is not penalty＂ and ＂welfare means pure economy＂, balancing the protection of juveniles and the protection of the victims, and balancing the investment and payment.