终身监禁是一种剥夺犯罪人人身自由的刑罚措施。在域外已然废除死刑、而又确立了终身监禁制度的国家，一般将终身监禁作为最严厉的刑罚措施。从世界范围来看，美国是构建和运用终身监禁制度较为典型的国家；在欧洲，以英国、法国、德国、意大利、俄罗斯、冰岛等国家比较具有代表性；在亚洲，终身监禁制度在日本、韩国、印度刑法中也有规定。2015年全国人大常委会通过的《刑法修正案(九)》在中国刑法中确立了终身监禁制度。比较而言，中国的终身监禁制度与国外的终身监禁制度有很大不同。关于中国终身监禁制度的法律定位，我国刑法理论界主要存在独立刑种说、替代措施说、附属刑罚说、中间刑罚说、特殊刑罚说等观点。我国刑法中的终身监禁制度不是作为一种独立刑种出现的，在当前的实践中也不是死刑立即执行的替代措施。中国刑法中的终身监禁制度是依附于死刑缓期执行的刑罚措施，而非依附于无期徒刑存在的刑罚措施。死缓同时决定终身监禁的刑罚措施具有“中间刑罚”的属性，其严厉程度介于死刑立即执行与普通死缓之间。死缓同时终身监禁有明确的适用对象，不是一种“多余的”刑罚。“特殊措施说”不适宜作为终身监禁法律性质的标准答案。中国的终身监禁制度是附属于死刑缓期执行、在刑罚力度上介于死刑立即执行与普通死缓之间的刑罚措施。其适用于判处普通死缓刑罚力度偏轻、同时又不适宜判处死刑立即执行的被告人。对于中国终身监禁制度司法适用的条件问题，通过对七例适用终身监禁案件的分析，被适用终身监禁的对象均是经司法机关审判认定构成贪污罪、受贿罪，从而被判处死缓、在两年缓刑考验期满之后依法减为无期徒刑的被告人；适用终身监禁的实质条件是被告人所犯的罪行极其严重，符合死刑适用的一般标准，同时，根据犯罪情节，不适宜判处被告人死刑立即执行。适用终身监禁的程序要件是终身监禁的“决定”与死缓判决同时作出，该“决定”与刑事诉讼活动中适用于专门事项“决定”有一定区别，具有判决的性质，有权作出决定的是中级以上人民法院。适用终身监禁，可以根据贪污受贿案件的具体情况考量犯罪人的人身危险性。从已有的判例分析，犯罪数额仍是终身监禁适用的重要标准。仅通过犯罪数额无法准确区分普通死缓、死缓同时终身监禁与死刑立即执行的界限，应当对犯罪情节、重大损失、社会影响等实质条件予以明确。在程序要件方面，应当合理限制法官的自由裁量权。对于中国终身监禁制度司法适用的范围问题，提倡通过尽可能适用终身监禁从而在司法实践中实际废止贪污、受贿犯罪死刑立即执行的司法扩张论的观点值得注意。在当前的司法实践中，扩张适用终身监禁制度缺乏理论支撑，缺乏合法依据，缺乏现实基础。在司法实践中，应当避免将死缓同时决定终身监禁适用于原本应当判处普通死缓或者死刑立即执行的被告人。在实践中将终身监禁制度的适用范围予以限制，具有必要性、合理性与可行性。对于终身监禁制度的溯及力，理论上存在一定争议。白恩培案反映出的主要问题在于，对于原本应当判处普通死缓的被告人，不能溯及适用终身监禁。终身监禁制度的溯及力问题在《刑法修正案（九）时间效力解释》中没有得到合理解释。《刑法修正案（八）》的相关条款已经突破“从旧兼从轻”原则。对于尚未宣告判决的案件，以贯彻罪责刑相适应原则的理由适用终身监禁，可能违反刑法的溯及力原则。通过解读，“处刑较轻”实质上只能作出有利于被告人的解释。终身监禁不能作为替代措施溯及适用于原本应当判处死刑立即执行的案件。对于服刑期间的重大立功表现是否影响终身监禁的执行存在激烈争议。死缓制度本身的特点决定了终身监禁的实际执行存在不确定性，罪犯在死缓考验期间的重大立功减为有期徒刑有法可依；罪犯在死缓减为无期徒刑之后执行期间的重大立功表现，仍应当执行终身监禁。对正在执行终身监禁的犯罪分子不存在适用暂予监外执行的可能性。结合我国当前特赦制度的实践分析，对于因贪污、受贿犯罪而被判处死缓同时决定终身监禁的罪犯并未完全排除适用特赦的可能。特赦制度可以成为被决定终身监禁的罪犯获取法律救济的正当途径。

Life imprisonment is a penal measure that deprives every criminal of personal freedom.In the countries that have abolished the death penalty and established the system of life imprisonment, life imprisonment is generally regarded as the most severe penalty measure.From a worldwide perspective, the United States is the construction and use of life imprisonment system more typical country;In Europe, Britain, France, Germany,Italy,Russia,Iceland and other countries are more representative;In Asia, Japan, South Korea and India also have provisions for life imprisonment.The Amendment (9) to the Criminal Law of the People's Republic of China, adopted by the Standing Committee of the National People's Congress in 2015, has established the system of life imprisonment in China's criminal law.Comparatively speaking, China's life imprisonment system is quite different from that of foreign countries.

As to the legal orientation of the system of life imprisonment in China, there are theories of independent punishment, alternative measures, accessory punishment, intermediate punishment and special punishment in the theoretical circle of criminal law.The system of life imprisonment in China's criminal law does not appear as an independent punishment, nor as an alternative measure for the immediate execution of death penalty in current practice.Life imprisonment in our criminal law is a penalty measure attached to the suspension of execution of death penalty, rather than a penalty measure attached to life imprisonment.The severity of life imprisonment system in our criminal law lies between the immediate execution of death penalty and the suspension of execution of death penalty, which has the attribute of intermediate penalty.At the same time, life imprisonment with suspension of death sentence has a clear object of application, which is not a redundant penalty.The theory of special measures is not suitable as a standard answer to the legal nature of life imprisonment.The system of life imprisonment in China is a measure of penalty execution which is attached to the suspension of execution of death penalty and lies between the immediate execution of death penalty and the suspension of ordinary death penalty in terms of penalty intensity.It is applicable to defendants who are sentenced to ordinary death penalty with suspension of execution and are not suitable for immediate execution of death penalty.

On the conditions of judicial application of life imprisonment system in China, Through the analysis of seven cases of life imprisonment, the object of life imprisonment is the defendant who has been convicted by the judicial organ of corruption and bribery, and has been sentenced to death with a suspension of execution and commuted to life imprisonment according to law after the expiration of the two-year test;The substantive conditions for the application of life imprisonment are that the defendant's crime is extremely serious, meets the general standards for the application of the death penalty, and is not suitable for immediate execution of the death penalty according to the circumstances of the defendant's crime.The procedural requirement of life imprisonment is that the decision of life imprisonment and the suspended sentence are made at the same time, which is different from the decision applied to special matters in criminal proceedings, and has the nature of judgment, and the people's court at or above the intermediate level has the power to make decisions. That can consider the personal danger of the offender according to the specific circumstances of the corruption and bribery cases for the application of life imprisonment.From the analysis of precedents, the amount of crime is an important criterion for the application of suspension of death penalty and life imprisonment. Only through the amount of crime can not accurately distinguish between ordinary suspended death sentence, suspended death sentence with life imprisonment and immediate execution of the death penalty boundaries, the circumstances of the crime, significant losses, social impact and other substantive conditions should be clear. In terms of procedural requirements, the discretion of judges should be reasonably restricted.

As for the scope of judicial application of life imprisonment in China, it is worth noting that the judicial expansion theory advocates the abolition of the immediate execution of death penalty for crimes of corruption and bribery by applying life imprisonment as far as possible in judicial practice. In the current judicial practice, the expansion of life imprisonment system is lack of theoretical support, lack of legal basis, lack of practical basis. In judicial practice, we should avoid applying life imprisonment with reprieve to the defendants who should have been sentenced to ordinary reprieve or immediate execution of death penalty. It is necessary, reasonable and feasible to limit the scope of life imprisonment system in practice.

There are some theoretical disputes about the retroactive effect of life imprisonment. The main problem reflected in the Bai Enpei case is that life imprisonment cannot be retroactively applied to defendants who should have been sentenced to ordinary suspended death sentences.There is no reasonable interpretation of the retroactivity of life imprisonment in the Interpretation of the Time Effect of the Criminal Law Amendment (9).The relevant provisions of the Criminal Law Amendment (8) have broken through the principle of from the old to the light. For cases that have not yet been sentenced, the application of life imprisonment on the grounds of implementing the principle of compatibility between crime and punishment may violate the principle of retroactivity of criminal law.Through interpretation, lighter punishment can only be interpreted in favor of the defendant.Life imprisonment cannot be applied retroactively as an alternative measure in cases where the death penalty would otherwise be imposed immediately.

There is a fierce controversy over whether the significant meritorious performance during the sentence affects the execution of life imprisonment.The characteristics of the death penalty with a reprieve system itself determines the uncertainty of the actual implementation of life imprisonment, and the significant meritorious service of criminals during the death penalty with a reprieve can be reduced to fixed-term imprisonment according to law; If a criminal performs significant meritorious service during the period of execution after the death sentence is commuted to life imprisonment, he shall still be sentenced to life imprisonment.There is no possibility of applying temporary execution outside prison to criminals who are serving life imprisonment.Combined with the analysis of the current amnesty system in China, the possibility of amnesty is not completely excluded for the criminals who are sentenced to death with suspension of execution and life imprisonment because of corruption and bribery.The amnesty system can be a proper way for criminals who are sentenced to life imprisonment to obtain legal relief