前科制度的理论根据、正当化限度及应对路径——以轻罪时代为背景

The Theoretical Basis,the Limits of Justification,and the Response Path of the Criminal Record System Under the Background of the Era of Misdemeanor

随着轻罪时代的来临,我国的前科制度更凸显出诸多弊端,亟待作出调整。只有厘清前科制度的理论根据和正当化限度,才能对前科制度的现状进行检视,进而发现存在的问题,并采取针对性措施。前科制度的理论基础是人身危险性已是共识,其存在的理论根据应是充当前罪行为人人身危险性的客观考察评估机制,其性质为保安处分,属于与刑罚相并列的犯罪的法律后果。前科制度的理论根据和性质决定了其正当化的限度应遵循罪刑法定原则、罪责自负原则、比例原则等基本原则。我国现行的前科制度明显有违前科制度的正当化限度,需要从废、调、补这三个方面来采取应对措施,即废除一些完全缺乏正当性的前科制度、对《刑法》第一百条进行合理调适、增设前科消灭制度。如此,方能满足轻罪时代的实践需求。

With the advent of the era of misdemeanor,China’s criminal record system has highlighted many shortcomings,and urgently needs to be adjusted.Only by clarifying the theoretical basis of the system and the limits of justification can we review the current situation of the system,and then find the existing problems and take targeted measures.The theoretical basis of the former criminal system is the personal danger has been a consensus,the theoretical basis for its existence should serve as an objective investigation and assessment mechanism for the personal danger of the criminal record,and its nature is a security sanction,which is a legal consequence of the crime alongside the criminal punishment.The theoretical basis and nature of the criminal record system determines the limits of its justification,which should follow the principle of legality,the principle of self-responsibility,the principle of proportionality and other basic principles.China’s current system of criminal record system is clearly contrary to the limits of justification of criminal record system,and needs to be abolished,adjusted and supplemented to take countermeasures in these three aspects,namely,the abolition of some completely lack of legitimacy of criminal record system,making a reasonable adjustment of the article 100 in Criminal Law,and the establishment of a system of elimination of criminal record system.In this way,the practical needs of the misdemeanor era can be met.