论假释实质条件的合目的性解释

The Purposive Interpretation of Substantive Conditions for Parole

假释制度的最高价值追求在于防止再犯,其本质是通过积极衔接监所服刑与社区矫正两大处遇措施以进行再犯风险管理。为打破假释悖论,突破假释率过低的实践困境,应立足防止再犯一元论对假释实质条件做出解释,把具有矫正相当性的犯罪人都纳入假释对象之中。对“确有悔改表现”和“对所居住社区的影响”均应采取消极判断,即只要犯罪人通过服刑表现反映出并不积极谋求再次犯罪,且未出现明显不利于社区稳定的可靠证据,假释后不至于难以确保包括被害人在内的地域社会安全,就应留有假释的余地。“没有再犯罪的危险”则应解释为“因为没有再犯罪的危险”以及“为了没有再犯罪的危险”,并从矫正相当性入手诠释其内涵。交付社区矫正适合于实现防止再犯的目的(适合性),比继续监所服刑更具防止再犯的实际效果(必要性),且与犯罪人的罪责并非显著不成比例(均衡性)时,就具备了矫正相当性,满足了假释的实质条件。

The active use of the parole system to strengthen the interface between prison sentences and community corrections and to give full play to the role of social encounters in preventing recidivism has become an unstoppable trend of development compatible with the philosophy of modern criminal policy.Facing the problem of the low parole rate in China,this paper aims to create a new situation of the application of the parole system in the aspect of the interpretation theory of criminal law by giving a purposive interpretation of the substantive conditions of parole.It first analyzes the due purpose of the parole system in the current criminal governance system and puts forward the monism of prevention of recidivism.Based on that,it clarifies the essence of parole and reveals the potential logical paradox in the dilemma of parole practice.Then,in light of the current legal provisions on the application of parole,explain the substantive conditions of parole in a way that conforms with the monism of prevention of recidivism from the perspectives of judging elements and judging criteria.It argues that the prevention of recidivism should be identified as the paramount purpose of the parole system,while other functions and advantages of parole merely serve the realization of this value or as ancillary benefits in the process of realizing this value.The essence of parole is to manage the risk of recidivism by actively bridging the two major measures of imprisonment and community correction.Instead of focusing only on the recidivism prevention results in the prison sentence phase,the possible recidivism prevention effects of community corrections after parole should be taken into account as well.To break the paradox of parole and overcome the practical dilemma of the low parole rate,all offenders with correctional suitability should be treated as subjects of parole.Concerning the judging elements of the substantive conditions of parole,requirements of"genuine repentance'and"impact on the community in which they live"should be minimized,i.e.,as long as the offender shows through the serving of the sentence that he or she does not actively seek to recommit a crime and there is no obvious evidence of a detrimental effect on or safety threat to the community and victim(s)after release,there should be a margin for parole.Concerning the judging criteria of the substantive conditions of parole,"no risk of re-offending"should be interpreted as"predicting no re-offending risk"and"utilizing community corrections resources to avoid re-offending risk",and the theory of correctional suitability should be applied to clarify its meaning.Correctional suitability is achieved and the substantive conditions for parole are met when community correction is more suitable for achieving the goal of preventing recidivism(appropriateness)and more effective in preventing recidivism than continued imprisonment(necessity),and not significantly disproportionate to the offender's culpability(proportionality).