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暂予监外执行是对自由刑执行的一种变通刑罚制度,体现了行刑个别化和立法者重视、保障人权的良好初衷。2012年《刑事诉讼法》、《监狱法》以及相关司法解释和规定对暂予监外执行制度进行了不断地增补或者修改,进一步完善了该制度,但目前仍存在诸多缺陷,使得部分不符合暂予监外执行标准的犯人为了自我开脱,通过拉关系、撒谎等非法渠道得到暂予监外执行的权利,滋生权力滥用和司法腐败。本文主要针对当前暂予监外执行程序非诉讼性存在的缺陷,提出构建暂予监外执行诉讼程序,以最终实现其设置的初衷,即:首先,从符合现代法治精神、法院解决弊端之所需和有利于检察监督三个方面论证暂予监外执行决定权应统一由法院行使;其次,从满足被害人及其直接利益关系人的诉求、符合程序正义的基本要求和促进刑罚预防目的之实现,阐述赋予被害人及其直接利益关系人参与权;最后,具体设计暂予监外执行的申请和受理、审理以及赋予社会团体、律师参与监外执行之诉讼程序。
The temporary execution outside prison is a flexible punishment system for the execution of free sentences, which reflects the good original intention of the individualization of executions and the importance attached by lawmakers to safeguard human rights. In 2012, the Criminal Procedure Law, the Prisons Law and relevant judicial interpretations and provisions continued to supplement or amend the system of temporary execution outside prison, which further perfected the system. However, there are still many shortcomings that make some of the non-compliance Prisoners temporarily serving extra-judicial enforcement standards have been given temporary extraterritorial execution rights, such as abuse of relations and liaison, through illegal channels to breed abuse of power and judicial corruption. This article mainly aims at the non-litigation nature of the temporary supervise execution procedure, and puts forward the original intention of constructing the temporary supervise execution procedure in order to finally realize its setup. First, from the spirit of modern law, the court to solve the defects Needs and conducive to the procuratorial supervision of the three arguments should be exercised by the court unified decision by the court; secondly, to meet the demands of the victims and their immediate stakeholders in line with the basic requirements of procedural justice and to promote the realization of the purpose of the penalty , Elaborates on the rights of participation of victims and their direct stakeholders; and finally, designs the application and acceptance of interim supervision for extra-judicial executions, as well as the procedure of giving social organizations and lawyers participation in extra-judicial execution.