摘要
《刑法》没有规定无期徒刑减为有期徒刑后实际执行的最低刑期,也没有规定无期徒刑减为有期徒刑后的假释考验期限。对于前一个漏洞,已经通过司法解释弥补,但后一个漏洞依然存在。我国在减刑制度的立法技术上缺乏对国外经验的比较借鉴;司法实践中假释适用率过低;对假释本质的“恩惠说”认识导致假释条文虚置化;惩罚哲学上长期偏重罪犯的监狱内改造而轻视、忽视非监禁刑改造等,既是漏洞出现的原因,也是漏洞不被发现的原因。面对有权解释的缺位,可以根据合理解释原则,对这一漏洞给出不明显违背常识、常理、常情的学理解答。
Unfortunately, no minimum serving term is provided in the Criminal Act for a prisoner whose sentence is mitigated from life imprisonment to a fixed term, or the probation period for parole is provided forhim. The former loophole has been covered by way of a judicial interpretation, yet the latter one still exists. With respect to legislation techniques, people in China have made little comparison with and drawn little reference to foreign experiences in criminal legislation. In practice, the ratio for parole is too low. Since the essence of parole is recognized as “benefaction,” it is seldom granted to prisoners. For a long time, the philosophy of criminal penalty centers on correction of prisoners behind the high wall rather than corrections outside the prison. These are the reasons for the existence and ignorance of the loopholes. In terms of the loopholes that can be closed within the scope of power, we should apply the principle of legal interpretation to solve certain problems as long as our answers are not contrary to the common sense, conventions and rationality.
出处
《现代法学》
CSSCI
北大核心
2005年第5期148-155,共8页
Modern Law Science
作者简介
周国文（1969-），男，湖北松滋人，西南政法大学讲师．刑法专业博士生。
