摘要
"促进构建治罪与治理并重的轻罪治理体系"已经成为检察机关改革的重点内容之一.轻罪治理是犯罪治理在轻罪场域的实践,其在本质上属于犯罪预防,要充分发挥刑事司法的作用,最大限度地推动轻罪治理的展开.兼容柔性预防的犯罪治理具有自主性和积极性,办理轻罪案件体现了对犯罪进行分类治理的合理选择.在刑事司法中对轻罪采取从轻从宽处理的方式确有必要,但对轻罪案件不能一味从宽,而应根据犯罪有效预防的需要,决定处理和治理的方式.司法机关办理轻罪案件的"抓手"在于解决三大制度性难题,即减少轻罪治理的犯罪标签、避免前科报告制度的负面后果,以及重视犯罪附随后果导致的遗患.就司法机关处理轻罪案件的具体途径来说,首先,应精准适用宽严相济刑事政策,将刑事政策的价值选择融入刑法体系之中;其次,提倡并运用社会相当性原理,对于一些行政违法的轻微行为不作为犯罪处理;最后,应当有效融通刑法总则和分则规定,尤其重视网络犯罪司法适用中刑法总则与分则的融通问题.
Abstract
"Promoting the construction of a misdemeanor management system that attaches equal importance to crime and management"has become one of the key contents of the reform of the procurato-rial organs.Criminal justice should assist in the goal of mitigating minor offenses by providing lenient treatment to cases.Therefore,it is necessary to first clarify the position and functional positioning of crim-inal justice in the system of minor crime governance.Handling minor crime cases is a part of crime gov-ernance and criminal justice is the lever to achieve minor crime governance.Treating criminal cases with leniency is currently the main direction for criminal justice to handle minor crime cases.The work of mi-nor crime governance should be embedded in the strategy of comprehensively governing the country ac-cording to law.The governance of minor offenses essentially belongs to crime prevention,and the role of criminal justice should be fully utilized to maximize the promotion of the governance of minor offenses.Saving criminal labels in the judicial process is a crucial condition for achieving the governance of minor offenses.The crime governance that is compatible with flexible prevention has autonomy and initiative,and handling minor crime cases reflects a reasonable choice for classifying and managing crimes.It is necessary to adopt a light and lenient approach in criminal justice for minor offenses,but for minor cases,leniency should not be blindly applied.Instead,the handling and governance methods should be deter-mined based on the needs of effective crime prevention.The"key"for judicial organs to handle minor crime cases lies in solving three major institutional problems:reducing the criminal labels of minor crime governance,avoiding the negative consequences of the criminal record reporting system,and paying at-tention to the aftermath of crime.As for the specific ways in which judicial organs handle minor crime ca-ses,firstly,they should accurately apply the criminal policy of balancing leniency and severity,and in-tegrate the value selection of criminal policy into the criminal law system.The first is to clarify the gener-al rules of the lenient and strict criminal policy for different types of crimes(persons);The second is to limit the threshold for criminalization through reasonable evaluation of judicial and administrative stand-ards;The third is to accurately grasp the relationship between criminal law and other departmental laws.Secondly,social equivalence implies a simple concept of social justice,and the principle of social equiv-alence should be advocated and applied to prevent minor administrative violations from being treated as crimes;Currently,what is more unfavorable for criminals to return to society and even for the governance of minor crimes is the accompanying consequences of the crime.Finally,it is necessary to effectively in-tegrate the general provisions and specific provisions of the Criminal Law,with particular emphasis on the integration of the general provisions and specific provisions of the Criminal Law in the judicial appli-cation of cybercrime,and to solve problems such as the criminalization of aiding behavior,the implemen-tation of preparatory behavior,and the individualization of criminal circumstances.Of course,the judicial approach is not sufficient to directly combat the negative impact of the criminal record reporting system and the accompanying consequences of crime,but its role cannot be denied.
NETL
NSTL
万方数据