犯罪化扩张趋势下前科消灭制度的构建

The Rational Necessity of Constructing the System of Eliminating Criminal Record under the Trend of Criminalization Expansion

当前我国对有犯罪记录人员笼统采取“一刀切”方式对待,制度目的本身偏离加上轻微罪前科者数量剧增、前科附随后果各式各样,使前科制度过分强调社会防卫的弊端凸显。随着犯罪化不断扩张、犯罪门槛不断降低,罪已经悄然演变,恶性深浅明显区分,法益观念发生转变,处理上提倡繁简分流,这都使前科“一刀切”显得格格不入。为消解当下前科规定产生的负面效应,需建构前科消灭制度。具体而言,要从罪质出发区分特定罪可否适用前科消灭,着眼刑罚以确定前科消灭考验期,双轨并行给予矫正良好者提前申请撤销的权利,累进消灭对重刑前科者分步取消权利限制,前科一旦消灭即纳入隐私权保护范围。

At present,China generally adopts a"one size fits all"approach to treat people with criminal records.The deviation of the system purpose itself,the sharp increase in the number of people with minor criminal records,and the various accompanying results of criminal records highlight the disadvantages of over-emphasizing social defense in the current department system.With the continuous expansion of criminalization,the threshold of crime has been continuously lowered,crimes have quietly evolved,the depth of malignancy has been clearly distinguished,the concept of legal interests has changed,and simplification and diversion have been advocated in handling,all of which make the"one size fits all"of criminal record seem incompatible.In order to eliminate the negative effects of the current criminal record regulations,it is necessary to construct the system of eliminating criminal record.Specifically,it is necessary to distinguish whether the elimination of criminal record can be applied to specific crimes from the nature of crimes,focus on punishment to determine the test period of elimination of criminal record,give those who have made good corrections the right to apply for revocation in advance in parllel,and cancel the right restriction step by step for those with severe criminal record by progressive elimination.Once the criminal record is eliminated,it will be included in the scope of privacy protection.