隐形之罚:犯罪附随后果的法治化重构

The Invisible Punishment:The Legal Reconstruction of The Incidental Consequence of Crime

我国犯罪附随后果制度发展至今,依据之广、数量之多、波及人员之众,早已超出预期。目前,该制度面临的正当性质疑主要包括:种类繁多侵犯公民基本权利、对象泛化违反罪责自负原则、条件随意违反特殊预防目的、后果严苛违反罪刑均衡原则、自动开启违反正当程序原则。对此,建议坚持保安处分的定位进行法治化重构,即按照罪刑法定原则重构规范根据,按照罪责自负原则剔除间接后果,按照比例原则取消轻罪附随后果,按照预防再犯目的建立前后实质关联,按照再社会化要求创新复归社会通道,按照司法终局原则畅通权利救济程序。

The system of incidental consequence of crime has a long history in China.Up to now,its basis is wide,its types are diverse,and the people involved are numerous,which has already exceeded the expectations.At present,the questions about the system mainly include:the various types violate the basic rights of citizens,the expansion of the application object violates the principle of self-responsibility,the arbitrary conditions violate the purpose of special prevention,the consequences seriously violate the principle of balance between crime and punishment,and the automatic opening violates the principle of due process.It is proposed to adhere to the orientation of security punishment to reshape the legislation,that is,according to the principle of legality of crime,reconstruct the standard basis;according to the principle of self-responsibility,delete the indirect consequences.According to the principle of proportionality,the subsequent consequences for minor crimes should be abolished.In accordance with the goal of preventing recidivism,establish substantive connections.In accordance with the requirements of re-socialization,open the channel of reintegration into society.In accordance with the principle of judicial finality,to smooth the procedure of rights relief.