未成年人刑事处遇制度研究——以《刑法修正案(八)》为参考

A Study of the Juvenile Treatment System:Reference to Amendment VIII to the Criminal Law

未成年犯罪人处遇制度是指国家为防止未成年人犯罪、以促进未成年犯罪人重返社会为目的而对犯罪人所施加的处置和待遇的总和。《刑法修正案(八)》在未成年人刑事处遇制度建设方面,包括在刑事禁止令制度、社区矫正制度、未成年人犯罪累犯豁免制度、缓刑制度、前科报告部分免除制度方面均有重大进展。笔者提出了在我国未成年人刑事处遇制度的实体、程序和组织机构方面仍然存在的问题,并对我国未成年人处遇制度的基本架构作了构想,为我国未成年人刑事处遇方面的制度做出了一个有益的探索。

The research of juvenile treatment system is conducive to the development and improvement of criminal law and even the whole criminal law system.In order to create the independent juvenile treatment system,it is necessary to break the fetters of adult treatment system.The institution of this system must be based on juvenile mind and body,and moreover on justice policies with the principle of"education first,punishment supplemented",which can prevent the negative impact on juveniles caused by inappropriate custodial sentence,and thereby can protect their socialized process.The juvenile treatment system means the deal and treatment as a whole which is offered to the criminals by state with the aim of preventing juveniles from criming and making the juvenile delinquents return to society.The necessity and importance of the research of juvenile treatment system is embodied in the following aspects,such as the characteristic and need of juvenile mind and body,the need of crime prevention,and its integrating with global society.AmendmentⅧto the Criminal Law of the People’s Republic of China made a great progress in the treatment system construction,which might summarized as:a)criminal injunction system perfected control and prevention measures;b)the community correction system revealed the socialization of execution-oriented;c)exemption system of juvenile recidivism satisfied the need of reintegration into society;d)probation system reflected back the need of the discreet penalty;e)the exemption of the reporting obligation kept the balance between protection of juveniles and society.It is a pity however that there were still plenty of shortcomings in the treatment system,a)there was no scientific norm in substantive law about how to convict and treat the juvenile criminals;b)there were many problems in procedural law about the reversion to such criminals’behaviors after a series of judicial procedures;c)the organization of the treatment system leaves something to be desired.As mentioned above,it is necessary for us to create a fairly complete and systematic juvenile treatment system not only provided with a set of clear principles but also workable measures.