教育刑与刑罚的教育功能
陈伟教育刑与刑罚的教育功能
Education-oriented Penalty and the Educative Function of Penalty
期刊名称：《法学研究》
期刊年份：
作者：陈伟
单位：西南政法大学法学院
中文关键词：教育刑;刑罚本质;刑罚目的;刑罚的教育功能
英文关键词：education-oriented penalty;essence of penalty;purpose of penalty;educative function of penalty
中文摘要：
受自然科学方法论和科学工具理性主义的推动，教育刑在时代背景底蕴的支撑下应运而生。教育刑以教育为刑罚本质、把教育作为刑罚目的、强调教育贯穿刑罚实践全过程，造成了教育与刑罚的异质性、刑罚目的位阶性、实践操作性等方面难以克服的多元困惑。教育刑理论根基的缺失以及“以教统刑”实践模式的弊病，不是否定刑罚教育功能的实质理由。区别教育刑与刑罚的教育功能，是结合刑罚理论和司法实践理性审视教育要素的结果，是对刑罚正本清源之后合理引导刑罚教育功能的需要。
英文摘要：
Promoted by the methodology of natural science and the rationalism of science tool, motivated by constitutionalism, humanitarianism, market economy value, popularization of technology and education, penalty reform, etc., the doctrine of education-oriented penalty comes into being. As a kind of foundational concept of penalty, the doctrine of education-oriented penalty has its given connotation, that is, education is regarded as the essence and objective of penalty and should be run through the whole process of criminal punishment. However, the existence of the doctrine cannot be equal to its due merit. According to the aforesaid claim, there is lots of insuperable puzzlement in theory.The doctrine of education-oriented penalty is short of realistic ground all the same in China. One side, the centuries-old ceremony tradition is not its proper soil. Confucian orthodoxy pursues incrimination on the nature of the guilty rather than civilization based on subjective intention, so the criminal law insists on social safety and neglects personal freedom, thinks much of incriminating than out-crimination, pays much attention on deterrence and is remiss of education. On the other hand, the minor’s especial protection cannot prove the reasonableness of the doctrine. As far as the theoretical criterion is concerned, the doctrine cannot be implemented from the beginning to the end. In the practical manipulation, the doctrine will probably overturn the relationship of “education at first, castigation secondly” on minor offenders. The theoretical deficiency and practical quandary of the doctrine of education-oriented penalty can not deny the educative function of penalty. We should distinguish the educative function of penalty from the education-oriented penalty, which will help us survey the education rationally in penalty theory and practice and facilitate the educative function of penalty after this clarification.
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