牢底怎能坐穿? –– 中國貪污受賄犯罪終身監禁的限制適用和體系性改良

How Can a Prisoner be Stuck in a Cell Forever? - - Restrictive Application of the Law of Life Imprisonment for Crimes of Corruption and Bribery and Systematic Improvement in China

Student thesis: Doctoral Thesis

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Award date15 Feb 2024

Abstract

终身监禁是自由刑勃兴的产物,是严厉性仅次于死刑立即执行的刑罚,被推崇为死刑的替代性措施。2015年中国《刑法修正案(九)》增设了贪污受贿犯罪的被告人判处死刑缓期二年期满依法减为无期徒刑后终身监禁的制度。官方解释为,有的贪污受贿罪犯利用过去的影响力干预刑罚执行,一些司法机关对其减刑、假释条件掌握过于宽松,致使罪犯在狱内服刑期实际过短,严重妨碍了司法公正,社会反映强烈,所以增设终身监禁制度。他们认为,终身监禁不是一个独立刑种,而是死缓的特殊刑罚执行措施,作为限制适用死刑的替代措施。终身监禁制度成为国家治理腐败、深入推进反腐败斗争向纵深发展的一项重要举措,带有强烈的刑事政策色彩。

中国贪污受贿犯罪的终身监禁作为非暴力犯罪的一种突破性规定,由于立法的仓促与粗犷,如何准确并严格适用,在中国刑法治理现代化的宏大图景中它的未来命运终将走向何方,是否应当在试验性立法的基础上继续扩大适用范围,成为摆在理论界与司法者面前的重要课题。本文立足于司法实践,在前人研究成果的基础上,力求通过实证调查研究和理论分析,对潜在的法律漏洞进行理论填补;通过规范研究、对策研究,寻找从实然到应然的路径。除第一章导论外,本文共分五章对终身监禁展开全面探讨。既尝试通过解释论视角,探究终身监禁司法适用的标准和原则、刑罚执行的困境和出路,以期实定法的适用能够限缩在合理范围内;又尝试通过立法论视角,辨析终身监禁的真实法律性质,反思其正当性根据,慎重研判其前途命运,竭力擦出制度重构的微光,发出对中国刑罚体系自洽改良与增益良法善治的呼吁,以期对扩大终身监禁适用范围的众口铄金予以商榷。

本文通过评析终身监禁对刑罚目的的实现与背离、与刑罚人道主义的契合与挑战,阐明不可减刑、假释的终身监禁缺乏正当性根据的基本立场。从终身监禁制度本源层面上探讨对中国式终身监禁的启示。利用系统观念揭开中国式终身监禁的“面纱”,认为刑事政策上的考量不能掩盖它的本质,其既是死缓的执行方式,亦是无期徒刑的特殊执行方式,体现了一种中间刑罚的样态,实质上是变相设立了真正的无期徒刑。由此造成在同一部刑法中既有死刑又有终身监禁的“双酷刑”局面。通过实证分析,结合法律规范,从刑法教义学角度,对终身监禁的适用条件进行探讨,解读对贪污受贿犯罪判处死刑“四个特别”条件的认定标准,以及界分死刑与无期徒刑、死缓、终身监禁的适用标准,提出终身监禁适用应当遵循的原则。根据域内外行刑的现状对比,对其刑罚执行方式改革提出合理、可行的假设与判断。不能仅仅为了将有缺陷的法条解释得没有缺陷,而进行任意解释或曲解法律。即使终身监禁存在诸多弊端,但根据立法原意和刑法规定,终身监禁执行期间,不能因有重大立功减刑,也不能暂予监外执行。在现阶段的政治、经济、社会背景下,只能考虑给予终身监禁罪犯其它的出路救济措施。

我们不但要从解释论上研究如何减少该法律制度的弊端,更应该从立法论上给出更完善的答案。本文从实然和应然视角提出了中国贪污受贿犯罪终身监禁制度的体系性改良进路。对终身监禁制度的命运走向提出“三步走”的构想,即限缩适用和完善救济、适时废止、改造无期徒刑。在现阶段,尽可能限缩适用,并积极探索终身监禁刑罚执行变更的可能性制度。在中国社会政治背景下,对被判处终身监禁的贪污受贿罪犯,一定时期内还缺乏赦免的政治因素和民意支持,应当借鉴和吸收世界其他国家关于赦免的制度,探索建立中国式自下而上的赦免申请制度。在尚不能废止贪污贿赂犯罪死刑的前提下,建议适时将死缓限制减刑的制度引入贪污受贿犯罪的法定刑,以实质长期刑替代终身监禁。当全面废除死刑的条件成熟时,对无期徒刑进行较为彻底的改造,将其分为限制减刑、假释的无期徒刑和普通的无期徒刑两类,增加无期徒刑的威慑力,实现罪刑相适应。现阶段在限缩和严格适用条件的同时,亦可考虑加强终身监禁适用的程序性控制,设定与死刑一致的复核程序,即复核权由最高人民法院统一行使的制度,探索建立强制上诉程序。终身监禁只能是刑罚发展和实现刑法工具目的的权宜之计,要警惕以死刑替代刑为名的立法过当。中国的终身监禁不应该走向繁荣、走向扩大,保持冷静而清醒地评估、评判,谨防它在非理性的推波助澜下盲目扩张。现有刑罚体系在谦抑化改良后足以担当刑罚现代化的重任,能够逐步实现中国刑法治理体系和治理能力的现代化。
Life imprisonment is the product of the rise of free punishment, and is the harshest punishment second only to the immediate execution of death penalty, and is respected as an alternative measure of death penalty. In 2015, the Ninth Amendment to the Criminal Law of China added a system whereby the death penalty for defendants convicted of corruption and bribery crimes is commuted to life imprisonment after a two-year reprieve. The official explanation is that some corruption and bribery criminals use their past influence to interfere in the execution of criminal punishments, and some judicial authorities seem too lenient when deciding the commutation and parole conditions of corruption and bribery criminals who received harsh sentencing. As a result, these criminals actually served insufficient time in prison, seriously hindering judicial justice and stirring up social repercussions, that’s why a life imprisonment system is applied upon the expiration of two-year reprieve of death penalty. In their view, life imprisonment is not an independent category of criminal punishment, but a special measure of execution with a suspended death sentence, as an alternative measure to restrict the application of the death penalty. The emerging life imprisonment has become an important approach for the country to grapple with corruption and further promote national anti-corruption program, with characteristics of crime policy at national level looming large.

As a breakthrough provision for non-violent crimes, China's life imprisonment system for corruption and bribery crimes has become an important issue theorists and judicial circles are facing due to the hasty and rough legislation, about the way how it will accurately and strictly apply, whether we should expand its scope of legislation on the basis of the experimental legislation, and what its future will ultimately be in the grand picture of the modernization of China's criminal law governance. Based on judicial practice and previous researches, this paper strives to theoretically close the potential legal loopholes, through empirical investigation and theoretical analysis. Utilizing normative research and empirical study, we will find a path from realism to idealism. Except the first chapter -the introduction, this paper is divided into five chapters to explore life imprisonment comprehensively. From the perspective of interpretive theory, this paper attempts to explore the standards and principles for the application of life imprisonment, the dilemma and outlets of penalty enforcement, so that the application of stipulated law can be limited to a reasonable range. The author also tries to distinguish and analyze the real legal nature of life imprisonment from the perspective of legislative theory, reassess its justness basis, judge its future development under close and prudent scrutiny, offer a glimmer of hope for system reconstruction, and eventually call for the self-improvement of China's penal system and the enhancement of good laws and good governance, so that we can refute those clamorous opinions of the mass which tend to expand the application scope of life imprisonment.

By assessing and analyzing the realization and deviation of life imprisonment from the purpose of punishment, as well as the compatibility and challenges of penal humanism, this thesis clarifies the basic opinion that life imprisonment without parole lacks justness basis. This paper discusses the enlightenment to Chinese life imprisonment from the source level of life imprisonment system. This thesis unveils the life imprisonment with Chinese characteristic in an holistic and systematic approach, arguing that criminal policy considerations should not cover up its nature- a kind of execution of death penalty with reprieve and also a specific execution of unfixed-term imprisonment, making it a mixed penal punishment. It covertly establishes a life imprisonment that cannot be commuted or paroled in the Specific Provisions of Criminal Law in China, which turns out to be a real unfixed-term imprisonment de facto. Life imprisonment has created a "double torture" where both death penalty and life imprisonment are included in the same criminal law. Through comparative analysis of the binding judgments of life imprisonment, combined with the legal norms, from perspective of the Criminal Law dogma, this paper discusses the application conditions of life imprisonment, try to interpret the "four special" identification standards for the death penalty for corruption and bribery crimes. Meanwhile it distinguishes the application standards for the death penalty, unfixed-term imprisonment, death penalty with reprieve and life imprisonment, and put forward five principles to help. Based on the comparison of the current situation between foreign execution and domestic execution, reasonable and feasible assumptions and measures are put forward for the reform of punishment execution mode. Arbitrary interpretations that violate the legislative intentions should not be performed though they try to justify the flawed legal provisions. Even though life imprisonment has many drawbacks, according to the legislative intent and the provisions of the criminal law, during the execution of life imprisonment, the sentence cannot be commuted because of major meritorious service, nor can it be temporarily executed outside prison. Under the current political, economic, and social background, life imprisonment should not be an unchanging penalty execution, and we should take into account the relief channels for criminals.

We should not only study how to reduce the drawbacks of this legal system from the perspective of interpretation, but also give a more perfect answer from the perspective of legislation theory. This paper puts forward the systematic improvement of life imprisonment system for corruption and bribery crimes in China from the perspective of reality and necessity. The paper puts forward the conception of "three steps" for the fate of life imprisonment system, that is, limited application and improvement of relief, timely abolition and transformation of life imprisonment. At this stage, we should limit the application of Life-Without-Parole as much as possible and actively research the feasibility of relief channel of life imprisonment. Under the current social and political background in China and some time to come, there is still a lack of political factors and public support for pardoning criminals who have been sentenced to life imprisonment for corruption and bribery. Therefore, we should also learn from the pardon systems of other countries in the world, and work out a tentative plan of a Chinese-style bottom-up amnesty system. Under the premise that the death penalty for corruption and bribery cannot be abolished, it is suggested that the existing commutation of death with reprieve should be introduced into sentencing the crimes of corruption and bribery in due course, and the application of life imprisonment shall be replaced by long-term imprisonment. When the requirements of abolishing death penalty across the board are met in China, life imprisonment will be thoroughly reformed and divided into life imprisonment without commutation or parole and ordinary life imprisonment like unfixed-term imprisonment, that’s how we increase the deterrent effect of life imprisonment and live up to the principle that the punishment shall be commensurate with the crime committed. At the present stage, while limiting and tightening the conditions for the application of life imprisonment, consideration can also be given to strengthening the procedural control of its application and establishing a review procedure consistent with the death penalty, that is, a system in which the review power is uniformly exercised by the Supreme People's Court, explore the establishment of a compulsory appeal procedure. From the perspective of what it should be, life imprisonment without commutation or parole can only be a band-aid solution in the evolution of criminal punishment and the realization of the purpose of criminal law. We must be alert about improper legislation in the name of substitute punishment of death penalty. Life imprisonment in China should not be prospered or expanded, and we should maintain calm and sober assessment and judgment, and stay vigilant about its proliferation under irrational impetus. The existing penal system, after restrained modification, can shoulder the important task of modernizing the penal system, and gradually modernizing China's criminal law governance system and capacity of governance.

    Research areas

  • Crimes of Corruption and Bribery, Life Imprisonment, Justness Basis, Restricted Application, Execution of Punishment, Institutional Reconstruction