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短期自由刑和罚金刑作为两种刑罚形式,在西方国家,已经形成了一定程度的互为替代关系。即在立法和司法层面,大多数原处短期自由刑的情形,已经基于刑罚宽和化的潮流,而易处罚金刑;而罚金刑的执行方式中,也将短期自由刑作为一种执行不了的有效替代措施。比较而言,在我国刑罚的适用过程中,虽大规模的提高了罚金刑的适用,但却是并科适用自由刑,在某种程度上,加重了刑罚,和世界潮流以及当初修订之本意相悖。文章旨在对适用现状的比较基础上,从法概念、法文化的角度分析上述状况的形成原因。并扼要提出笔者的几点构想。
Short-term freedom and fine as two forms of punishment, in Western countries, have formed a certain degree of mutual substitution. That is, at the legislative and judicial levels, most cases of short-term libertarian sentences are punishable by the trend of widening penalties and penalties, and the implementation of fine penalties also makes short-term liberties impossible to implement Effective alternative. In comparison, although the application of the fine has been raised in a large scale in the application of the penalty in our country, it has been subject to the imposition of a free sentence and to some extent aggravated the penalty and the trend of the world as well as the intention of the original revision Contradictory. The purpose of this article is to compare the status quo of application and to analyze the reasons for the above situation from the perspective of legal concepts and legal culture. And briefly put forward some ideas of the author.