根据乌克兰新刑法草案免除处罚

Oleksiy Gorokh
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The considerations guided by the working group on the development of the new criminal legislation in formulating new legislative provisions are given. The necessity of changing the terminology of the institute of release from punishment is proved. The expediency of enshrining in the legislation new sub-institutions of the institute of release from punishment is substantiated: non-sentencing; non-execution of the sentencing; deferral of execution of sentencing; suspension of execution of punishment. Arguments concerning expediency of optimization of the system of types of release from punishment are resulted. It is argued that the institution of release from criminal liability is inconsistent with the principle of presumption of innocence. In this regard, the expediency of transforming this legal institution into an institution of release from punishment has been proven. 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引用次数: 0

摘要

刑法改革导致了新的法律制度的出现或对现有法律制度的改进,从而实现了对法律制度的深入研究。该条的目的可以从提交人在乌克兰新《刑法》草案中对释放制度模式的设想的定义中看出。为了实现这一目标,我们采用了历史与法律、比较、辩证、系统、解释学等方法,批判性地分析了国内外立法、学说条款,并重点介绍了乌克兰新刑法草案的建议。根据研究结果,论证了我国刑罚释放法律制度改革的主要创新点。介绍了新刑事立法制定工作组在制定新立法条款时所作的考虑。证明了改变刑满释放所术语的必要性。将刑满释放研究所的新附属机构纳入立法的权宜之计得到了证实:不判刑;不执行判决;推迟执行判决;暂停执行刑罚。引发了关于优化刑罚释放类型制度的权宜之计的争论。有人认为,免除刑事责任的制度不符合无罪推定原则。在这方面,已证明将这一法律机构转变为一个免于惩罚的机构是权宜之计。界定了刑事阻止立法中规定的刑罚释放类型的系统化途径。考虑到刑事诉讼的阶段,已将释放惩罚的类型系统化。强调了在犯罪集团立法中解决刑罚释放类型制度对外关系保障问题的途径。提出了大赦和赦免条例的新设想。有人认为,迫切需要改进关于在实践中检验的释放类型的新立法的法律规定:关于诉讼时效的到期;缓刑释放;假释国家在人权领域的积极义务影响了关于免除疾病、假释和大赦的条款的设计。已提出立法建议,以解决被判处无期徒刑的罪犯早日获释的问题。
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Release from Punishment under the Draft New Criminal Code of Ukraine
Reforming criminal law leads to the emergence of new or improvement of existing legal institutions, which actualizes the conduct of thorough research. The purpose of the article is seen in the definition of the author’s vision of the model of the institution of release from punishment in the draft of the new Criminal Code of Ukraine. To achieve this goal using historical and legal, comparative, dialectical, systemic, hermeneutic and other methods, we critically analyzed national and foreign legislation, doctrinal provisions, and highlighted the proposals for the draft of the new Criminal Code of Ukraine.According to the results of the study, the main novelties of reforming the legal institution of release from punishment are substantiated. The considerations guided by the working group on the development of the new criminal legislation in formulating new legislative provisions are given. The necessity of changing the terminology of the institute of release from punishment is proved. The expediency of enshrining in the legislation new sub-institutions of the institute of release from punishment is substantiated: non-sentencing; non-execution of the sentencing; deferral of execution of sentencing; suspension of execution of punishment. Arguments concerning expediency of optimization of the system of types of release from punishment are resulted. It is argued that the institution of release from criminal liability is inconsistent with the principle of presumption of innocence. In this regard, the expediency of transforming this legal institution into an institution of release from punishment has been proven. The ways of systematization of types of release from punishment provided in the legislation of the criminal block are defined. The types of release from punishment have been systematized taking into account the stage of criminal proceedings. The way of solving the problem of ensuring the system of external relations of the system of types of release from punishment within the legislation of the criminal bloc is highlighted. A new vision of amnesty and pardon regulation is proposed.The urgency of improvement in the new legislation of legal regulation of the types of release from punishment tested in practice is argued: in connection with the expiration of the statute of limitations; release from serving a probation sentence; parole.Demonstrated as positive obligations of the state in the field of human rights have influenced the design of provisions on exemption from punishment for illness, parole, amnesty. Legislative proposals have been made to settle the issue of early release of convicts sentenced to life imprisonment.
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发文量
10
审稿时长
24 weeks
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