“犯罪随附后果”的失范与规范

The Failure and Regulation of the “Consequences Attached to the Crime”

摘要: 在我国，犯罪人接受刑罚之后，其部分权益还将面临一系列禁止、剥夺或限制条款的约束，这些条款构成的规则体系称为“犯罪随附后果”制度。该制度在实际运行过程中出现了诸多失范现象。出现失范现象的原因在于：以预防风险为基调的价值定位存在偏差；制度的设计背弃了责任主义的基本原则；缺乏应有的社会关怀，对犯罪人的再社会化问题置之不理；人们道德评价存在的偏见使得制度发展走向歧路。为此，一方面需要在制度的实体内容层面进行规范，如明确犯罪随附后果的种类，禁止对犯罪人的亲属适用等。另一方面，在制度的程序方面进行规范，如规定适用时效、为犯罪人提供救济途径等。

Abstract: In China, after receiving a sentence, the offender is also subject to a series of provisions prohibiting, depriving or restricting his or her rights and interests, which constitute a system of rules known as the system of “consequences attached to the crime”. In the course of its actual operation, the system has been plagued by many irregularities and has neglected to safeguard the rights and interests of offenders. The reasons for this are as follows: the value orientation of the system, which is based on risk prevention, is biased; the design of the system has abandoned the basic principle of accountability; there is a lack of due social care, and the problem of re-socialization of offenders is disregarded; and the bias of people’s moral evaluation has led the system’s development in the wrong direction. In this regard, it is necessary, on the one hand, to regulate the substantive aspects of the system, for example, by clarifying the types of consequences attached to the crime and by prohibiting their application to the relatives of the offender, and so on. On the other hand, it is necessary to regulate the procedural aspects of the system, such as establishing a statute of limitations and providing avenues of redress for offenders.