转型期《未成年人保护法》刑责减免政策的教育社会学分析

Educational Sociology Analysis of the Policies of Reducing and Exempting from Criminal Responsibility in the “Law of the Protection of Juveniles” during the Transformation Period

本文追溯未成年人刑责减免观念与制度的历史、当代实践、困境及化解之道。首先,自周代已降中国一贯采取"德主刑辅"的社会控制。其中,青少年刑罚减免原则便是教化为主刑罚为辅的表现之一。传统时代青少年越轨者虽可减免国之罚,但不免于乡治之"礼法"。其次,当前中国处于转型期,一方面,基层空心化甚至暴力化导致价值失范与教化缺位,另一方面,提前身体成熟的青少年往往不得教养而趋暴力化。若不顾当前价值失范期教化缺失的实情,却继续听任青少年犯罪者仅凭年幼而几近无条件免于处罚,无异于养虎遗患。当然,也需谨防不教而诛。最后,化解之道在于:从人性流品不齐与教化重建看,宜教与罚并行不悖;差异对待,先教而后罚,加强家庭、学校的教化与社区纠错功能等;不迷信教化万能,对不可教化者待之以刑。

This article traces the history, current practice, predicament and solution of concept and system of reducing and exempting from criminal responsibility for juveniles. Firstly, since the Zhou dynasty China has consistently taken the social governance with ＂morality given priority over penalty＂, in which the principle of penalty reduction and exemption for juveniles is one of the expressions of education given priority over penalty. Although the juvenile offenders could be exempted from the state penalty, they could not be exempted from the rural law and discipline rite in the traditional eras. Secondly, China is in the midst of transformation, on the one hand,the hollowness trend and violence tendency at the grassroots level lead to demoralization of values and deficiency of enlightenment, on the other hand, what the precocious adolescents face is not enlightenment, but violence tendency. If the current situation of the enlightenment deficiency in the period of demoralization of values is neglected and keep the nearly unconditional exemption of penalty based only on the young age of the juvenile offenders, it is no difference to that appeasement brings disaster. Certainly, we also need to beware of punishment without prior warning. Last but not least, the solution lies in the following： both enlightenment and penalty can go hand in hand from the differences in humanities and rebuilding enlightenment; differences be treated in different ways and warning be given priority over punishment; the enlightenment from families and schools the error correction function of communities be strengthened; enlightenment not be regarded as having unlimited power and penalties be implemented to those who can not to be moralized.