轻罪时代下刑罚附随性制裁制度的规范化——实体与程序的双重路径

Regularization of the System of Sanctions Attached with Punishment in theEra of Misdemeanor:A Dual Path of Substance and Procedure

随着轻罪时代的来临,刑罚附随性制裁负面作用愈发突出,如内容的不合理性、适用的无差别化、权利的不可救济性等。该制度与比例原则、罪责刑相适应原则、程序法定原则等不相适应,阻碍了轻罪立法的推进和轻罪治理现代化的实现。刑罚附随性制裁在本质上属于保安处分,其制定、适用应当恪守保安处分的原则及理念。完善实体内容,检视附随性制裁的合理性和必要性,删除、修改违反相关法律基本原则的内容;构建并优化程序路径,以规范刑罚附随性制裁的适用,保障犯罪人的正当程序权利,确保公平、正义得到体现。同时构建轻罪前科消灭制度以更好地保障轻罪犯罪人的权利,促进再社会化。

With the advent of the misdemeanor era,their negative effects have become more pronounced,such as irrationality in their content,non-differentiated application,and lack of remedies for rights.The system is suspected of violating the principle of proportionality,the principle of appropriateness of punishment and responsibility,and the principle of procedural legality,which has impeded the advancement of misdemeanor legislation and the modernization of misdemeanor governance.Sanctions attached with punishment are essentially security sanctions,and their formulation and application should abide by the principles and concepts of security sanctions.It is needed to improve the substantive content,review the rationality and necessity of ancillary sanctions,and delete or modify those that do not comply with the principles of law;it is also needed to construct and optimize the procedural path to regulate the application of collateral sanctions,safeguard the due process rights of offenders,and ensure that justice and fairness are manifested.At the same time,a system for the elimination of prior criminal record has been constructed in order to better safeguard the rights of misdemeanor offenders and promote re-socialization.