轻罪时代下前科制度的内在弊病及其应对

The Inherent Disadvantages of the Prior Conviction System in the Age of Misdemeanors and Its Response

随着刑法积极参与社会治理,轻罪犯罪圈的扩张、轻罪人数的持续增加已成现实。然而,因为我国的前科制度,大量轻罪案件存在“轻罪不轻”现象,这不仅违反了罪刑法定、罪责自负的基本要求,也有违刑罚的正当性,故有建立前科消灭的必要。针对以上这些内在弊端,应当将前科制度纳入法治化轨道之中,着手改革前科制度。应当建立前科消灭制度,明确前科制度的立法层级,全面清理具有牵连性的前科规定,清理与犯罪行为关联性不强的前科处罚规定。在具体规则上,可以仿照追诉时效制度设置不同的前科消灭期间,前科消灭的效力应当限于非刑事领域,同时应当构建由法律明确规定、法院裁定、依行为人申请三种消灭方式结合的前科消灭制度。

With the active participation of criminal law in social governance, the expansion of the circle of misdemeanor crimes and the continuous increase in the number of misdemeanor crimes have become a reality. However, because of our country’s antecedent system, a large number of misdemeanor cases exist “misdemeanor is not light” phenomenon, not only violates the law of crime and punishment, the basic requirements of self-responsibility, but is also contrary to the justification of punishment, so there is a need to establish the antecedent elimination. In view of these inherent shortcomings, the system should be brought under the rule of law and reformed. Establish the system of elimination of previous convictions, a clear legislative level of the system of previous convictions, a comprehensive clean-up of the provisions of the previous convictions with the implication, that clean-up and criminal behavior do not have a strong correlation of the provisions of the previous convictions of the penalty. In terms of specific rules, different periods for the elimination of previous convictions can be set up following the system of statute of limitations for prosecution, and the effect of the elimination of previous convictions should be limited to non-criminal fields, while the system for the elimination of previous convictions should be constructed with a combination of three elimination modes, which are expressly stipulated in the law, adjudicated by the court, and applied according to the perpetrator.