【作者】 彭新林；

【导师】 马长生；

【作者基本信息】 湘潭大学 ， 刑法学， 2007， 硕士

【摘要】 前科消灭是指曾受法院有罪宣告或被判定有罪的人在具备法定条件时,国家抹销其犯罪记录,使其不利益状态消失,恢复正常法律地位的一种刑事制度。该制度的法律性质,既非刑事责任(最后)的消灭,亦不能认为是刑罚后遗效果的消灭,而应当定位为“犯罪后遗效果之消灭”。从规范层面上解析,前科消灭具有适用对象上的特定性、适用条件上的法定性,以及适用程序上的严格性;从实质层面上透视,前科消灭又具有利益上的妥协性、价值上的倾向性,以及运作上的柔悯性。前科消灭对于前科者、社会,以及国家均可能发挥积极的作用:对于前科者,前科消灭具有感化、鼓励、调适的功能;对于社会,前科消灭又具有整合、安护、悯恤的功能;对于国家,前科消灭则发挥揄扬和防卫的功能。前科消灭的内容应当涵容消除犯罪记录、限制犯罪记录公开、恢复权利三个层次。不宜从罪质、刑罚、对象等角度对前科消灭的适用范围作过多的限定,但可根据前科之罪的罪质,以及所适用的刑种、刑度等的不同而确立不同的前科消灭方式,以充分发挥这一制度在刑事政策上的最大功效。前科消灭主要涵括法定的前科消灭、裁判的前科消灭、赦免的前科消灭三种基本的类型,每一种类型的前科消灭在适用时均需遵循法定的消科程序,方可正式消灭前科。前科消灭制度的存置具有深厚的理论根基。从人性的维度来考量,前科消灭制度是人性的可变性与发展性、具体性与社会性相统一的必然要求;用哲理的眼光来审视,辨证唯物主义、唯物辩证法、历史唯物主义都为前科消灭制度的存置奠定了理论上的支撑;由法理的立场来观照,前科消灭制度乃是公正性与功利性的题中应有之义;以刑理的视角来省察,报应与预防亦为前科消灭制度的存置提供了证成的理由。我国引入前科消灭制度不仅具有必要性,而且还富有现实可行性。构建中国特色的前科消灭制度,是一项十分复杂的系统工程,从其设立到发挥效力,必需要特定的环境和条件以及配套的制度保障。除了立法上的建构以外,还需依赖司法上的保障、行政上的支持、文化上的支撑,以及社会各方面的合力。更多还原

【Abstract】 The elimination of previous conviction system may be defined as a kind of criminal system that was referred once one received the court guilty announcement or was sentenced to be a guilty person, when conformed to the legal conditions, the country expunges the previous convictions for him, thus causes the unfavorable state to vanish, restores his normal legal status. The legal nature of elimination of previous conviction should not position on the elimination of criminal liability or Penalty sustained effect, instead, it ought to position on the elimination of crime sustained effect. From the perspective of normative analysis, specific object, legal conditions as well as strict procedure in applying are the characteristics of elimination of previous conviction.But if we approach it from a substantive angle, we may find that the system of elimination of previous conviction is full of interests compromise, value tendentiousness as well as nimble operation. Nobody, needless to say, can deny the fact that this system may exert positive influence to the criminals, the society, the whole country. for the criminals, the elimination of previous conviction system are quite necessary to move them for renewal, encouraging them to live a law-abiding life, adapting them to the surroundings. As for the society, this system are a must to keep the society order in movable balance, to protect the society security from being endangerd, and call the general public for sympathy. As far as the country is concerned, to eliminate the previous conviction are also beneficial to show the country’s generosity towards the criminals, and guard the whole regime at large. Besides, this system’s content should contains three parts which include abolishment of criminal record, restriction in criminal record be public, and Rehabilitation. It is not necessary to exert too much restrictions in elimination of previous conviction from three aspects, such as Crime nature, penalty, object, etc. but it doesn’t mean that we cann’t establish different applicable approaches for the elimination of previous conviction. In fact, different applicable approaches for elimination of previous conviction are good for fully display the maximum work effect in the aspect of criminal policy. Moveover, this system mainly contains three basic kinds of styles to eliminate the previous conviction, that is, legal elimination of previous conviction, judicial elimination of previous conviction, and remit to eliminate the previous conviction, each kind of elimination of the previous conviction must strictly follow the given procedure in legislation when being operated. Only by doing so, can the previous conviction be eliminated offcially. The existence of elimination of previous conviction system has a solid theoretical foundation. Considering from the human nature dimension, to eliminate the previous conviction is the natural result of unification of variability and developed tendency, as well as concrete and social disposition of human nature. Carefully examining with the philosophic judgment, the dialectical materialism, the materialistic dialectics, the historical materialism all give support to this system. Coming the contemplation by the legal principle theory of law standpoint, the elimination of previous conviction is righteous with fairness and utility. Engaging in trospection by the angle of punishment principle, retribution and prevention also provide rational strut for elimination of previous conviction.Our country introduces the elimination of previous conviction system not only have the necessity, but also is full of rich realistic feasibility. To construct the system of elimination of previous conviction with Chinese characteristics is an item of extremely complex systematic engineering, from setting up to display potency, it need much support of specific environment and conditions as well as supplementary systems. Apart from the construction in legislation, the elimination of previous conviction system fall back on the judicial safeguard, the administrative support, the cultural strut, as well as social joint effort at all levels.更多还原