摘要
犯罪附随失信惩戒措施具有弥补刑罚有限性、增强刑罚惩戒效果、规训社会公众守法意识的功能.然而,随着轻罪时代的到来,犯罪类型与犯罪数量均发生了巨大的转变,失信惩戒措施不仅已异化为犯罪的附随后果之一,而且泛化与滥用的现象也越发严重.这导致了社会信用体系的建设偏离法治化的道路,更为重要的是,对我国公民正当权益的保护也埋下了极大的法治隐患.为了推动犯罪附随失信惩戒措施的法治化,在价值维度上,应追求自由与秩序的平衡,重申并恪守禁止不当联结原则与比例原则;在具体路径上,应通过明晰适用条件、分类惩戒措施、关照犯罪情状、排除高发型轻罪适用以及完善救济程序等方式,建立类型化、立体化、关联化以及可救济的犯罪附随失信惩戒措施适用规则.
Abstract
Incidental punitive measures for breach of trust attached to crime aim to compensate for the limitations of penalties,enhance the deterrent effect of punishments,and cultivate law-abiding awareness among the public.However,with the advent of the era of minor offenses,there has been a significant transformation in both the types and quantities of crimes.The punitive meas-ures for breach of trust attached to crime have not only become one of the incidental conse-quences of crime,but also witnessed a phenomenon of growing generalization and serious a-buse.This has not only led to the deviation of the construction of the social credit system from the rule of law,but,more importantly,brings some hidden troubles to the legal protection of the legitimate rights and interests of Chinese citizens.To promote the rule of law of incidental punitive measures for breach of trust attached to crime,a balance between freedom and order should be emphasized in the value dimension,reiterating and adhering to such principles as prohibiting improper connections and maintaining proportionality.In terms of specific approa-ches,we should establish categorized,multidimensional,interconnected,and remediable rules for the application of punitive measures for breach of trust attached to crime by clarifying appli-cable conditions,classifying punitive measures,taking into account the nature of the offense,excluding the application for high-incidence minor crimes,and improving remedy procedures.
NETL
NSTL
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