论累犯后罪起算时间之规定的缺陷及其弥补--基于罪刑均衡原则的考量

On Defect and Compensation of Regulation of Recidivism's Start Counting Time of Subsequent Crime--Consideration Based on Principle of Balance Between Crime and Punishment

我国现行刑法第65条将刑罚执行完毕之日、刑罚赦免之日和假释期满之日规定为累犯后罪的起算时间。刑法的这一规定把犯罪分子在刑罚执行期间故意犯特定新罪这类更具有特殊预防必要性的犯罪行为排除在了累犯的范围之外。对于该类犯罪行为,不能适用有关累犯的处罚规定,而只能适用"先减后并"的处罚规定,结果使罪责更为严重的犯罪行为反而得到了较轻的处罚,违背了罪刑均衡原则。因此,应当结合累犯从重处罚的根据和罪刑均衡原则,对我国累犯后罪的起算时间进行调整,使我国相关刑事立法符合罪刑均衡原则。

China＇s current criminal law＇s 65 article regulates completion date of penalty implement, pardon date of penalty implement.maturity of period of parole are recidivism＇s start counting time of subsequent crimes. This provision of the criminal law excludes the specific new crimes, which are commltted intentionally by criminals during execution of penalty and needs special preventing, beyond the limits of recidivism. For these crimes, the penalty provisions concerning recidivism can not be applied, but only penairy provision of ＂combination of sentence after reduction＂ can be applied. As a result, more serious crimes are punished with lighter punishments, which violates the principle of balance between crime and punishment. Therefore, on the basis of combination between the basis for heavier punishments for recidivism and principle of balance between crime and punishment, regulations of recidivism＇s start counting time of subsequent crimes should be adjusted, which makes China＇s principle of balance between crime and punishment. relevant criminal legislations be in line with the