刑法典第37条中的免予刑事处罚规定被认为是定罪免刑制度的重要内容，其合理性、必要性及价值蕴涵被越来越多的学者所关注。但是，由于免予刑事处罚或者说免除刑罚在司法中只是作为例外性的适用，再加上第37条内容本身的抽象模糊，该规定也遭到部分学者的批判。在司法实践中，不同法院对“犯罪情节轻微不需要判处刑罚的，可以免予刑事处罚”的理解存在较大差异，导致该规定的司法适用率低且混乱。本文在借鉴部分学者研究成果的基础上，共分四个章节对刑法典第37条中的“免予刑事处罚”进行深入研究，以期理清该条的基本含义，优化其司法适用，更好的指引司法实践。

第一章是刑法典第37条中的定罪免刑规定概述。该章对我国刑法典中定罪免刑规定的含义和类型作了简要分析，重点厘清了第37条定罪免刑是指人民法院认定犯罪人的行为构成犯罪的前提下对其免除一切刑罚处罚。同时，着重探讨了第37条定罪免刑制度设计的合理性及其价值蕴涵，该规定顺应了刑罚轻缓化的趋势，彰显了刑法的谦抑性，也契合我国并和主义的刑罚理念和宽严相济的刑事政策。德国、日本及我国台湾地区的免刑规定对我国的借鉴意义在于，一方面应当适当扩大免刑的适用范围，另一方面可以通过司法解释的方式对常见罪名的免刑条件加以细化和完善。

第二章是刑法典第37条定罪免刑的主要争议。本章首先就第37条中“犯罪情节”、“情节轻微”、“不需要判处刑罚”、“可以免予刑事处罚”的内涵进行了分析和解释，以期司法审判中在保证法官自由裁量权的前提下能够公平公正的适用该条。其次重点对第37条定罪免刑的性质和体系地位、其与具体免刑规定的关系、第37条的独立适用问题进行了探讨。第37条应当属于“酌定免除事由”，即由法官根据案情酌情考虑之后免除刑罚处罚；第37条规定与具体免刑规定之间是包容与被包容的关系，且第37条可以作为独立免刑事由，即某一案件在不具备刑法具体免刑条文规定的情形下能够单独适用第37条对犯罪人免除刑罚。最后将第37条与第13条“但书”规定进行了区分与对比，前者“认为是犯罪”，立法目的是考虑定罪之后要不要判处刑罚，后者则“不认为是犯罪”，立法目的是区分罪与非罪。

第三章是对刑法典第37条定罪免刑制度存在的问题进行剖析。一方面，我国学术界对于定罪免刑制度存在认识上的误区，表现为“对传统罪刑关系理论的冲击”、“与刑罚目的不相适应”、“与现行处罚体系存在矛盾”等。另一方面，我国司法实践中存在 “部分案件滥用”和“不准确适用”等情形，造成这种情形的原因主要包括“对刑法第37条的含义及适用条件把握不到位”、“对某些具体罪名的构成要件不熟悉”、“一定程度上对某些公职人员存在包庇，滥用司法裁量权”等。

第四章是对刑法典第37条定罪免刑制度的完善。要想让定罪免刑制度在实践中得到更加合理和准确的应用，首先就要从观念上接受，正确认识这一制度的价值，形成认同感。其次就是要对其含义进行解释和统一，明确犯罪情节是指与行为人本身相联系及反映整个犯罪过程的所有主客观事实，包括定罪情节和部分量刑情节。“轻微”主要考虑这些情节体现出的行为人犯罪行为社会危害性小、本人主观恶性小，没有一般预防和特殊预防的必要性。必要的时候可以由最高人民法院以司法解释或者指导案例的形式对常见罪名的定罪免刑问题予以明确。再次就是明确司法审判中将定罪免刑案件统一交由审判委员会最终讨论决定，以确保适用的公平、准确。最后就是从适用范围、条文引用、配套措施及与非刑罚处罚方法衔接四个方面对该制度进行优化和完善。一是该制度的适用不应当有范围的限制。二是如果某一案件综合考虑可以免予刑事处罚，但是没有17种具体的免刑事由时，则可以直接引用第37条并进行释法说理。三是法院在判决前，可以借鉴刑事诉讼中对未成年人刑事案件社会调查制度，对与犯罪行为及犯罪人有关的个人状况和社会状况重点进行调查；在宣告判决前，也要通知被告人家属等进行法治宣传和教育，妥善安排其今后的生活。检察机关如果认为免予刑事处罚的判决不当的，应当及时予以抗诉或提出检察建议。四是如果判处非刑罚处罚措施的，也要做好跟进工作，及时监督被告人履行。

The provision of exemption from criminal punishment in Article 37 of the Criminal Law is considered as an important part of the system of conviction and exemption from punishment, and its rationality, necessity and value implication have been paid more and more attention by scholars. However, as exemption from criminal punishment is only applied as an exception in justice, and the content of Article 37 itself is abstract and vague, this provision has also been criticized by some scholars. In judicial practice, different courts have great differences in understanding of "minor crimes that do not require criminal punishment can be exempted from criminal punishment", leading to low and chaotic judicial application rate of this provision. Based on the research results of some scholars, this paper divides into four parts to conduct an in-depth study on Article 37 of the Criminal Law, in order to clarify the basic meaning of this article, optimize its judicial application, and better guide judicial practice.

The first chapter is an overview of the provisions on conviction and exemption from punishment in Article 37 of the Criminal Law. This chapter makes a brief analysis of the meaning and types of the provisions on conviction and exemption from punishment in the Criminal Law of our country, and focuses on clarifying that Article 37, conviction and exemption from punishment, means that the people's court exempts a criminal from all penalties on the premise that his behavior constitutes a crime. At the same time, it focuses on the rationality and value implication of the design of Article 37, and holds that this provision conforms to the trend of mitigation of punishment, manifests the modesty of criminal law, and is also in line with China's doctrine of combinationism and the criminal policy of tempering justice with mercy. German, Japanese and Taiwan Province regulations can be used for reference in China. For one thing, the applicable scope of exemption can be appropriately expanded; for another thing, the conditions of exemption for common crimes can be refined and improved by judicial interpretation.

The second chapter is the main controversy of Article 37 of the Criminal Law. Firstly, this chapter analyzes and explains the connotations of "criminal circumstances", "minor circumstances", "no need to be sentenced to punishment" and "exemption from criminal punishment" in Article 37, so as to apply this article fairly and justly on the premise of guaranteeing the discretion of judges in judicial trials. Secondly, it focuses on the nature and system status of the conviction and exemption of Article 37, the relationship between it and specific exemption provisions, and the independent application of Article 37. Article 37 should be subject to "discretionary exemption", that is, the judge should consider it according to the circumstances of the case and then exempt from punishment. There is an inclusive relationship between Article 37 and other exemption provisions, and Article 37 can be used as an independent exemption cause, that is, a case can be exempted from punishment by applying Article 37 alone without other specific exemption provisions of criminal law. Finally, it is distinguished and compared with the provisions of Article 13 "proviso". The former is "considered a crime", and the legislative purpose is to consider whether to impose a penalty after conviction, while the latter is "not considered a crime", and the legislative purpose is to distinguish between crime and non-crime.

The third chapter analyzes the problems existing in the system of conviction and exemption from punishment in Article 37 of the Criminal Law. On the one hand, there are misunderstandings about the system of conviction and exemption from punishment in Chinese academic circles, which are manifested as "impact on the traditional theory of the relationship between crime and punishment", "incompatibility with the purpose of punishment", "contradiction with the current punishment system" and so on. On the other hand, there are "abuse of some cases" and "inaccurate application" in Our judicial practice. The reasons for this situation include "inadequate grasp of the meaning and applicable conditions of Article 37 of the Criminal Law", "unfamiliarity with the constituent elements of some specific crimes", "sheltering some public officials to a certain extent and abusing their discretion", etc.

The fourth chapter is the perfection of the system of conviction and exemption from punishment in Article 37 of the Criminal Law. This paper holds that in order to make the system of conviction and exemption from punishment more reasonable and accurate in practice, we must firstly accept it from the concept, correctly understand the value of this system, and form a sense of identity. Secondly, it is necessary to explain and unify its meaning, and make it clear that the criminal circumstances refer to all subjective and objective facts related to the perpetrator and reflecting the whole criminal process, including conviction circumstances and partial sentencing circumstances. " Slight crime " mainly considers that these circumstances reflect that the social harm of the perpetrator's criminal behavior is small, his subjective malignancy is small, and there is no need for general prevention and special prevention. When necessary, the Supreme People's Court can clarify the conviction and exemption of common crimes in the form of judicial interpretation or guiding cases. Thirdly, it is clear that all cases of conviction and exemption from punishment should be submitted to the Judicial Committee for final discussion and decision, so as to ensure the fairness and accuracy of application. Finally, the system is optimized and perfected from four aspects: the scope of application, the quotation of provisions, supporting measures and the connection with non-penalty punishment methods. In particular, first, the application of the system should not be limited in scope. Second, if a case can be exempted from criminal punishment after comprehensive consideration, but there are no 17 specific reasons for exemption, Article 37 can be directly quoted and interpreted. Third, before the judgment, the court can learn from the social investigation system of juvenile criminal cases in criminal proceedings and focus on the investigation of personal and social conditions related to criminal acts and criminals. And before the judgment is pronounced, the family members of the accused should also be informed to conduct legal publicity and education, so as to make proper arrangements for their future lives. If the People’s Procuratorate considers that the judgment of exemption from criminal punishment is improper, it shall promptly protest or put forward procuratorate suggestions. Fourth, if non-penalty measures are imposed, follow-up work should be done to supervise the defendant's performance in time.