CAJ | 학술논문

宽严相济刑事政策经历了从“镇压与宽大相结合”到“惩办与宽大相结合”再到“宽严相济”的发展过程，其传统内容“首恶必办，胁从不问，坦白从宽，抗拒从严，立功折罪，立大功受奖”不能适应时代需要，宜将内容重新界定为：该宽则宽，该严则严；宽中有严，严中有宽；宽严适度，不偏不倚；宽严适时，有张有弛；多数从宽，少数从严。根据宽严相济刑事政策，我国应减少生命刑；改造管制刑为社区服务刑，提高有期徒刑的上限，数罪并罚时采取相加原则，新增不可减刑或假释的无期徒刑；设立财产刑易科制度；将“剥夺政治权利”改造为“剥夺公权”，增设剥夺从事特定职业、活动的资格刑；累犯应当从重或加重处罚，三次以上累犯一律不得减刑或假释。
관엄상제형사정책경력료종“진압여관대상결합”도“징판여관대상결합”재도“관엄상제”적발전과정，기전통내용“수악필판，협종불문，탄백종관，항거종엄，립공절죄，립대공수장”불능괄응시대수요，의장내용중신계정위：해관칙관，해엄칙엄；관중유엄，엄중유관；관엄괄도，불편불의；관엄괄시，유장유이；다수종관，소수종엄。근거관엄상제형사정책，아국응감소생명형；개조관제형위사구복무형，제고유기도형적상한，수죄병벌시채취상가원칙，신증불가감형혹가석적무기도형；설립재산형역과제도；장“박탈정치권리”개조위“박탈공권”，증설박탈종사특정직업、활동적자격형；루범응당종중혹가중처벌，삼차이상루범일률불득감형혹가석。
The criminal policy of ＂temper justice with mercy＂ has experienced a progress from the ＂ combination of suppress with leniency＂ to the ＂combination of punishment with leniency＂, and then to ＂temper justice with mercy＂. Traditional criminal policy cannot adapt to the current situation with the content of ＂punishing the chief criminals, ignoring accomplice under duress, leniency to confessor, severity to resister, lighter punishment for meritorious service, reward for great meritorious service＂. The opinion that the criminal policy has developed into applying slight actions to petty crimes and stern penalties to serious crimes also contains something irrational. So the criminal policy shall be redefined as ＂adequate leniency or severity without any impartiality, leniency with severity or severity with leniency, leniency or severity given according to the situation, leniency given to majority and severity to minority＂. The requirement of the penalty system can be deducted from the criminal policy of ＂temper justice with mercy＂. Adequateness of penalty requires the consistency of crime and penalty. Penalty shall be designed upon the social harmfulness of the crime and be kept under the policy of ＂adequate leniency or severity without any impartiality＂. ＂Severity with leniency, leniency with severity＂ requires that penalty be individualized and have a reasonable consideration for the criminal＇s violation possibility to the society. ＂Adequate punishment without any impartiality＂ requires a penalty with a reasonable proportion of leniency and severity avoiding any blanks between leniency and severity. ＂Leniency or severity given according to the situation＂ requires that penalty designing should conform to the social, political and economical situation and the trend of crimes and serve the general goal of constructing a harmonious society and country governed by law. ＂ Leniency given to majority and severity to minority＂ requires the penalty designing to indicate humanitarianism and humanism concerns and to be lenient in general. Compared to the criminal policy proposed, the current penalty system in our country has the following limitations： too severe life punishment, too extensive freedom punishment, serious malfunction of property punishment, lack of competence punishment, and uncritical recidivist system. Hence, our country should reduce life punishment, innovate public surveillance to community service punishment, increase the upper limit of freedom punishment to 25 years or 30 years, accept the adding principle for combined punishment for several crimes without the upper limit of penalty period, divide life imprisonment into that with parole and commutation and that without parole and commutation, only commute suspension death penalty to life imprisonment without further commutation and parole, set up system of property punishment substitution, change deprivation of political rights punishment to the deprivation of public rights including voting or being elected, government service, title of technical post, ranks etc. , add punishment of depriving special competence or action, stipulate a heavier punishment for the recidivist within or above the penalty margin and no commutation or parole for the recidivist who conducted three or more times of crime.