无罪责能力人保安处分的立法刍议

Legislative Advice on Security Measures for People without Responsibility for an Offence

保安处分一直是学术界热议的话题之一,尤其在2013年全国人大常委会宣布废止劳动教养制度后,学者们又将后劳教时代的保安处分之争推向一个新的高潮。大多数在刑法中设立保安处分的国家和地区采取二元主义的保安处分,即这些国家和地区的刑法将保安处分作为除刑罚以外的另一种刑事法律后果与刑罚双轨运行。劳教制度刚废止不久,基于人权保障之故,并不赞同二元主义的保安处分,认为应仅就欠缺刑事责任能力和刑事责任年龄的"准犯罪"行为刑事立法化,以祛除其人身危险性为主要目的,以强制医疗和强制教育为主要手段,构建我国剥夺人身自由的保安处分。且将这种制度性质确定为"准刑罚",作为我国非刑罚法律后果之一。

Security measure is always a hot topic in the field of academy world,especially after Standing Committee of the National People＇s Congress declared to abolish the system of reeducation through labor in 2013,and scholars push the argument of security measures in the post-era of reeducation through labor to a new climax. In most countries and regions where the security measures are set in criminal law,the dualism security measures are adopted,which means in these countries and regions,security measures are regarded as another criminal law consequence beyond criminal penalty in criminal law,and operated it.After the system of reeducation through labor is abolished,based on the guarantee of human rights,this paper does not go along with the dualism security measures.So that the paper considers that it is appropriate to legislate aiming at the ＂quasi crimes＂behaviors without criminal capacity and age of criminal responsibility,take the personal dangerousness removing as main purpose,the compulsory medical service and compulsory education as main measures to construct the security measures depriving personal liberty in our country. Meanwhile,this system property is intended to be the ＂quasi criminal penalty＂,which is one of the non-criminal legal consequences in our country.