積極刑法立法背景下前科消滅制度之構建

Construction of Criminal Record Elimination System under the Background of Active Criminal Law Legislation

輕罪化的立法主張有其合理性，但受制於現存的前科制度，''輕罪不輕''現象客觀存在，且導致出現犯罪的直接後果與間接後果輕重''倒掛''的不正常現象。新近積極的刑法立法實踐，亟須相關的前科消滅制度作為配套措施。當下一些前科規定明顯缺乏正義價值的內在支撐，具體體現為:背離罪刑法定原則''罰由‘法’定''的本意，違背罪責自負的基本法治精神，且與懲罰犯罪的報應與預防根據存在較大程度的脫靶。針對這種內在弊病，前科制度理應歸入制定法律的事項，應全面清理具有牽連色彩的前科規定，應謹慎設置終身制的前科規定。懲罰與犯罪具有基本關聯性是分配正義及罪刑相適應原則的應有之義，犯罪性質與從事職業、落戶積分、獲得榮譽等資格的關聯性便應成為設置前科制度的主要考慮因素。在具體細節安排上，前科消滅效力應限於非刑事領域，過失犯罪與定罪免罰的情形不應算作前科，可以仿照追溯時效的規定設置前科消滅的條件，同時建構''法定''''裁定''''申請''三種消滅方式。輔以前科消滅制度的輕罪化，才能真正實現刑罰輕緩化。

"The legislative proposition of misdemeanor has its rationality, however, subject to the existing criminal record system, the phenomenon of ''misdemeanor is not light'' objectively exists, which leads to the abnormal phenomenon of ''upside down'' between the direct and indirect consequences of crime. The newly active legislative practice of criminal law urgently needs the relevant criminal record elimination system as a supporting measure. At present, some criminal record provisions obviously lack the internal support of justice value, which is specifically reflected in: deviating from the original intention of the principle of legality that ''punishment is determined by the law'', violating the basic spirit of self responsibility, missing the focus on retribution and prevention basis of punishing crime. In view of these inherent disadvantages, the criminal record system should be included in the matters of formulating laws, the criminal record regulations with implicated color should be completely cleaned up, the provision of lifelong criminal record should be set carefully. Punishment is basically related to crime, which is the due meaning of the distributive justice and the principle of adapting crime to punishment, the relationship between the nature of crime and qualifications such as occupation, settlement points and obtaining honors should be the main consideration in setting up the criminal record system. In terms of specific details, the effect of the elimination of criminal record should be limited to the non criminal field, negligent crime and impunity should not be counted as a criminal record, the conditions for the elimination of criminal record can be set according to the provisions of retroactive prescription, at the same time, three elimination methods of ''legal determination'', ''ruling determination'' and ''determination by application'' are constructed. Only supplemented by the elimination system of criminal record we can really realize the mitigation of punishment."