论刑罚附随后果的性质与体系洽和

On the Nature and System Harmony of the Consequences Attached to Criminal Punishment

刑罚附随后果主要在于预防犯罪行为的发生,其性质存在行政责任说、资格刑说、刑罚体系外的准资格刑说及保安处分说等四种理论学说。通过对刑罚附随后果的内容进行分析,应当认为其性质为保安处分。保安处分说受到质疑之处在于保安处分内容不清、体系定位不足,其与现行刑罚体系发生一定冲突。冲突的解决应当回归到刑罚附随后果是保安处分这一基本性质,完成与刑事制裁体系的洽和。具体路径是整合刑法内外的刑罚附随后果制度,将人身危险性作为对犯罪分子科处刑罚附随后果的重要指征。与此同时,建立前科消灭制度,促进犯罪人再社会化与罪责自负同步推进。

The consequences attached to criminal punishment mainly lie in preventing the occurrence of criminal acts.There are four theoretical theories of administrative responsibility,qualification penalty,quasi-qualification penalty outside the penalty system and security punishment.Through the analysis of the content of the consequences attached to criminal punishment,its nature should be considered as security punishment.The reason why the security punishment theory is questioned is that the content of security punishment is unclear and the system positioning is insufficient,which conflicts with the current penalty system.The resolution of the conflict should return to the basic nature of the consequences attached to criminal punishment by the consequences of security,and complete the harmony with the criminal sanctions system.The specific approach is to integrate the system of penalty incidental consequences inside and outside the criminal law,and take personal danger as an important indicator to properly deal with the incidental consequences of punishment.At the same time,the system of eliminating criminal record should be established to promote the re-socialization of criminals and the self-responsibility of crimes.