减刑、假释制度是现代行刑制度的重要内容，对鼓励罪犯改过自新、调控原判刑罚、维护监管秩序、促进罪犯顺利回归社会以及最大限度实现刑罚目的发挥着不可替代的功能，自产生以来就备受理论界和实务界关注。从世界范围内来看，许多国家和地区都存在根据罪犯在服刑期间的表现而适当减轻其原判刑罚或将其附条件提前释放的制度，只是具体称谓和内容有所不同。目前，少数国家存在减刑制度，而假释制度已普遍为世界各国所接受。我国1979年颁布的第一部刑法典也规定了减刑制度和假释制度，这两种制度在1997年系统修订刑法典时又得以进一步完善。近年来，最新立法及司法解释又对减刑、假释制度进行了进一步的修改，使其日趋完备。我国现行的减刑、假释制度既借鉴了国外经验，又具有自身特色。但是，无论是在立法层面还是在司法层面，我国现行减刑、假释制度均存在较多缺陷，这与其所占据的重要地位并不相符，也不利于其功能的发挥。特别是当前“减刑为主、假释为辅”的运行模式以及假释率过低的现象备受苛责，理论界和实务界几乎一致认为这些现象对于罪犯的改造和回归、刑罚执行制度功能的发挥以及刑罚目的的最终实现存在不利影响，倡导“限制减刑、扩大假释”已成为主要趋势。 改革我国现行的减刑、假释制度已成为一项刻不容缓的迫切任务。在深入研究减刑、假释制度的设置机理、正当性根据以及掌握我国减刑、假释制度实际运作状况的基础上，综合已有研究成果，运用理论联系实际的方法，理论、规范以及数据分析法，历史以及比较的方法，分析其存在的问题以及原因，结合减刑、假释制度的利弊以及借鉴国外成熟的经验，进而提出适合我国罪犯改造的减刑、假释制度改革路径和具体的改革构想，具有十分重要的理论和现实意义。 本研究由引言和正文两部分组成，引言部分对本研究的意义和目的、现状和特点以及方法和思路等问题予以阐明。正文共分为以下五个部分： 第一章，减刑、假释制度的基础理论。减刑、假释制度都在不同程度上对原判刑罚进行了变更，在性质上属于变更刑罚执行制度。减刑制度与假释制度之间以及减刑、假释制度与累进处遇制度、赦免制度以及改判制度之间既存在联系，也存在区别。在本质上，现代减刑、假释制度应被视为罪犯的一种权利，罪犯享有减刑、假释请求权和减刑、假释获准权。减刑、假释是建立在科学理论基础之上的行刑实践，刑罚目的理论、刑罚经济理论、行刑人道理论、行刑社会化理论以及行刑个别化理论构成了减刑、假释制度的理论支撑。减刑、假释制度对罪犯、司法机关以及社会具有不同的功能，当然，这些功能的实现依赖于减刑、假释制度科学的设计、公平的适用以及高效的运行。 第二章，我国减刑、假释制度的现状及问题。减刑、假释制度的现状及问题主要反映在立法和司法两个层面。在立法层面，我国相继颁布的两部刑法典都规定了减刑、假释制度。1997年刑法典颁布以来，围绕减刑、假释制度涌现了大量的司法解释和具体规定。近年来，刑法、刑事诉讼法、监狱法以及相关司法解释又都对减刑、假释制度作了不同程度的修改，减刑、假释制度较过去取得了较大的进步。但是，无论在实体上，还是在程序上，现行减刑、假释制度立法及司法解释仍存在较大的缺陷，亟待完善。在司法层面上，全国法院每年审理大量的减刑案件和少量的假释案件，但从适用效果上看，假释优于减刑。在司法适用中，我国仍存在重减刑、轻假释，减刑、假释区域性差异过大，不同刑期罪犯所获减刑、假释比例失当，减刑、假释程序行政化、形式化倾向严重，监督力度有待提高等一系列问题。理论界和实务界均对这些问题给予了较多关注。为了解决这些问题，我国部分地方司法机关已开始积极探索完善之法，其中部分探索对于减刑、假释制度的改革具有积极的借鉴意义。 第三章，减刑、假释制度改革的基本问题。在针对减刑、假释制度立法和司法存在的问题进行改革的过程中，应以减刑改革与假释改革并重、实体改革与程序改革并重、改革制度与维护秩序并重、贯彻宽严相济刑事政策等基本原则为指导，通过科学分析、全面比较减刑制度与假释制度的利弊，确立假释制度优于减刑制度的结论，并树立构建“假释为主，减刑为辅”行刑新格局的改革目标。减刑制度与假释制度适用的对象并不完全重合，在二者重合的范围内，应当限制甚至废除减刑，扩大适用假释，在二者不重合的范围内，应当继续保留减刑制度。由于扩大假释的适用需要理性的观念指导和发达的配套制度辅助，因此，对减刑、假释制度的改革不能一蹴而就。我国“减刑为主，假释为辅”行刑格局的地位在短期内是难以撼动的，这一行刑格局在今后较长的时期内仍将占据重要地位且无法彻底扭转。根据这一现实情况，可树立近期和长远两个改革目标，分为司法改革和立法改革两个阶段进行，以司法改革作为立法改革的基础，完善减刑、假释制度存在的缺陷，在假释制度处于常态运行之后，建立在发达的配套制度基础之上，再以立法改革重新构建减刑、假释制度，从而最终在立法上形成“假释为主、减刑为辅”的行刑新格局。 第四章，减刑、假释制度改革的第一阶段：司法改革。在现行立法框架下，科学调整减刑、假释制度的司法运作，一方面严格减刑的适用条件，主要是从严格减刑的限度条件、对象条件等方面着手，对减刑的适用进行适当限制，另一方面放宽假释的适用，主要从假释对象条件、实质条件以及运行条件等方面着手，逐渐实现假释率的稳步增长。通过在司法层面改革提请程序、审理程序、监督程序以及增强罪犯和被害人程序权利等措施，为减刑、假释功能的有效发挥提供严密、可行、公正的程序保障。同时，解决减刑、假释制度在实践运行中的若干共性问题，通过完善罪犯考核制度、厘清财产刑执行、民事赔偿义务履行与减刑、假释适用之间的关系、取消减刑、假释比例制、摒弃责任倒查制、取消限制假释适用的“法外法”等措施，最大限度地清除影响减刑、假释制度良性运行的因素以及阻碍假释制度正常适用的障碍，建立健全人身危险性评估制度、社区矫正制度，为扩大假释制度的适用提供重要的基础和配套保障。 第五章，减刑、假释制度改革的第二阶段：立法改革。由于并未站在通盘角度考虑减刑、假释制度的利弊，因此理论界围绕减刑制度或者假释制度改革所提出的诸多观点有孤立和片面之嫌，不具有科学性和可行性。减刑、假释制度的立法改革应作为一项系统工程进行，主要措施包括：在实体法层面，以减刑、假释制度的适用范围和制度本身的特点为标准，重新划定减刑制度和假释制度适用的对象范围，即缩小减刑适用的对象范围、扩大假释适用的对象范围，对减刑、假释的实质条件、限度条件进行立法完善，建立减刑考验与撤销制度，完善假释考验与撤销制度。同时，基于累进处遇制与假释制度之间的天然联络，将累进处遇制引入监禁刑执行和非监禁刑执行中，并将假释作为对监禁刑累进处遇的最高级别。在程序法层面，以司法改革为基础，继续坚持减刑、假释提请权属于行刑机关，减刑、假释裁决权属于人民法院，监督权属于人民检察院，并对减刑、假释提请权、裁决权以及监督权进行立法完善，赋予罪犯和被害人参与权，构建符合中国实际情况的减刑、假释实施程序，即为实体立法改革所形成的“假释为主、减刑为辅”行刑新格局提供切实体现公正性、人权保障性和民主参与性的程序保障。

Both the systems of mitigation of sentence and parole are the important contents of the modern penalty execution system, which play an irreplaceable role in encouraging the criminals to repent and reform, regulating and controlling the original sentence, maintaining the supervision order, promoting the criminals to return to society smoothly, and realizing the purposes of criminal penalty to the utmost, and attract the attention from both the theoretical and practical circles from the start. Around the world, there are lots of countries and regions which stipulate a system that a criminal’s original sentence might, in accordance with a criminal’s behaviors during the term of imprisonment, be mitigated or a criminal might be released ahead of time with relevant conditions, only varying in the specific title and contents. Currently, the system of mitigation of sentence is stipulated only in few countries, while the system of parole has been accepted by various countries of the world. In the first criminal code of China promulgated in 1979, there were stipulations on both the system of mitigation of sentence and the system of parole, which were further improved when the criminal code was revised in 1997. Moreover, in recent years, the latest legislation and judicial interpretations provided for more amendments to the two systems, which made them become increasingly complete. The current systems of mitigation of sentence and parole in China not only use the foreign experience for reference, but also possess their own characteristics. However, no matter from the legislative or judicial perspective, the current systems of mitigation of sentence and parole in China are defective, which is neither consistent with their important role, nor beneficial for the development of their functions. Especially, the current operational mode of “taking mitigation of sentence as the principal and parole as the complementary measure” and the extremely low rate of parole are under severe criticism. Both the theoretical and practical circles hold that these circumstances are unbeneficial for the rehabilitation and return of criminals, the development of the functions of the penalty execution system, and the ultimate realization of the purposes of penalty. Therefore, the advocacy of “restricting the application of mitigation, expanding the application of parole” has become the primary trend. The reform of the current systems of mitigation of sentence and parole in China has become an urgent and pressing task. On the basis of a deep research of the setting mechanism and reasonableness ground of the systems of mitigation of sentence and parole and an understanding of the actual operating conditions thereof, a reform route and specific reform conceptions for the systems of mitigation of sentence and parole that are applicable to the rehabilitation of criminals in China shall, based on the existing research achievements, be brought forward by using the methods of applying theories into practice, historical analysis and comparative analysis to analyze the existing problems and reasons as well as the merits and demerits of the two systems and by using the mature experience in foreign countries as reference. This will have a very important theoretical and practical significance.This research consists of two parts, an introduction and a text. In the introduction, the values, aims, current situations and characteristics as well as the methods and modes of thoughts of this research are explained clearly. In the text, there are five parts as follows:Chapter 1 introduces the basic theories of the systems of mitigation of sentence and parole. Both the system of mitigation of sentence and the system of parole alter the original sentence to some extent, which, in nature, fall under the system of altering penalty execution. There are connections between the system of mitigation of sentence and the system of parole, between the systems of mitigation of sentence and parole and the systems of progressive treatment, absolution and change of original sentence, but there are also differences. In essence, the modern systems of mitigation of sentence and parole shall be deemed as a kind of right of the criminals, which denotes the criminals are entitled to the right of claiming mitigation of sentence and parole and the right of being granted with mitigation of sentence and parole. Both the mitigation of sentence and parole are a kind of execution practice based on scientific theories, such as the theories of purposes of criminal penalty, economic criminal penalty, humanitarian execution of penalty, socialized execution of penalty and individual execution of penalty, which provide a theoretical foundation for the systems of mitigation of sentence and parole. In the case of criminals, judicial authorities and society, the systems of mitigation of sentence and parole have different functions. Certainly, the realization of the above-mentioned functions relies on a scientific design, fair application and an efficient operation of the systems of mitigation of sentence and parole. Chapter 2 introduces the current situations and problems of the systems of mitigation of sentence and parole in China. The current situations and problems of the two systems are reflected from both the legislative and judicial perspectives. From the legislative perspective, the two successive criminal codes promulgated by China both provided for stipulations on the systems of mitigation of sentence and parole. Since the promulgation of the criminal code in 1997, lots of judicial interpretations and specific provisions centering on the systems of mitigation of sentence and parole have been stipulated. In recent years, the criminal law, the criminal procedure law, the prison law and relevant judicial interpretations have also revised the systems of mitigation of sentence and parole in different degrees, and the two systems have, compared with the past, made relatively significant progress. However, no matter in the substance or in the procedure, the current legislation and judicial interpretations on systems of mitigation of sentence and parole are still defective and need to be improved. From the judicial perspective, although the courts trial a great number of cases involving mitigation of sentence and a small number of cases involving parole each year, from the effects of application, the effect of parole is better than that of mitigation of sentence. During the judicial application, in China, there still exist a series of problems such as attaching more importance to mitigation of sentence while focusing less on parole, the large differences of applying mitigation of sentence and parole in different regions, the improper proportion of applying mitigation of sentence and parole to criminals of different terms, the severe administrative-oriented and formal-oriented procedure of mitigation of sentence and parole and the need-to-be-improved supervision strength. Both the theoretical and practical circles attach great importance to these problems. In addition, in order to solve these problems, some local judicial organs have already actively commenced the explorations on how to improve mitigation of sentence and parole, and some of the explorations can be used as a positive reference for the reform of the systems of mitigation of sentence and parole. Chapter 3 introduces the basic problems in the reform of the systems of mitigation of sentence and parole. During the reform process aiming at the existing problems of the systems of mitigation of sentence and parole in the legislation and judiciary, under the guidance of the basic principles such as attaching equal importance to the reform of mitigation of sentence and reform of parole, paying equal attention to the substantive reform and procedural reform, laying equal stress on the system reform and order maintenance, as well as implementing the criminal policy of temper justice with mercy, and through scientific analysis and comprehensive comparison of the merits and demerits of the system of mitigation of sentence and the system of parole, the conclusion that the parole system is prior to the system of mitigation of sentence shall be established and the reform goal of constructing a execution pattern of “taking parole as the principal and mitigation of sentence as the complementary measure” shall be built. The application targets of the system of mitigation of sentence and system of parole are not exactly the same; therefore, when the targets are the same, the application of mitigation of sentence shall be restricted or even abolished, when the targets are not the same, the application of mitigation of sentence shall be continued. Since the expansion of the application of parole shall be under the guidance of reasonable concepts and with the assistance of developed supporting systems, the reform on the systems of mitigation of sentence and parole cannot be accomplished in one move. Instead, in accordance with the current realities, the reform shall be conducted in two steps, the judicial reform and the legislative reform. The judicial reform shall be the basis of the legislative reform, and only after the normal operation of parole system can the systems of mitigation of sentence and parole be reconstructed through legislative reform on the basis of developed supporting systems, thus finally establishing the new execution pattern of “taking parole as the principal and mitigation of sentence as the complementary measure” in the legislation.Chapter 4 introduces the judicial reform on the systems of mitigation of sentence and parole. Under the current legislative framework, in order to scientifically adjust the judicial operation of the systems of mitigation of sentence and parole, on the one hand, the conditions for applying mitigation of sentence shall be strictly stipulated, mainly from strictly stipulating the limits and targets of mitigation of sentence, on the other hand, the restrictions on applying parole shall be relaxed, mainly from relaxing the targets, substantive and operational requirements of parole, to gradually realize the steady growth of the parole rate. Meanwhile, during the practical operation, measures such as improving the system of assessing criminals, clarifying the relationship between the execution of property penalty, performance of civil compensation obligation and the application of mitigation of sentence and parole, abolishing the proportional rate of mitigation of sentence and parole, repealing the current system of imposing responsibility, abrogating the “informal laws and regulations” that restrict the application of parole shall be adopted to eliminate the factors that affect the positive operation of the systems of mitigation of sentence and parole and the barriers that prevent the normal application of the parole system to the utmost, and to establish and improve the system of evaluating personal dangerousness and the system of community correction for the purpose of providing important bases and supporting guarantees for the expansion of the application of parole system. In addition, measures, from the judicial perspective, such as reforming the procedures of submission, trial and supervision, strengthening the procedural rights of the criminals and victims shall also be adopted to provide a rigorous, applicable and fair procedural safeguard for the effective development of the functions of mitigation of sentence and parole. Chapter 5 introduces the legislative reform on the systems of mitigation of sentence and parole. Since the theoretical circle has not taken the merits and demerits of the systems of mitigation of sentence and parole into consideration from an overall perspective, the various views centering on the reform of the system of mitigation of sentence or reform of the system of parole brought forward by them are isolated and one-sided, with no scientificity and applicability. The legislative reform on the systems of mitigation of sentence and parole shall be conducted as a systematic project, mainly including the following measures: from the perspective of substantive law, to re-delimit, on the basis of the application scope and characteristics of the systems of mitigation of sentence and parole, the target scope that the system of mitigation of sentence and the system of parole might be applied, that is, to narrow the target scope that mitigation of sentence might be applied, to expand the target scope that parole might be applied, to improve the legislation on the substantive conditions and limits for mitigation of sentence and parole, to establish an examination and cancellation system for mitigation of sentence, and to improve the examination and cancellation system for parole. Meanwhile, due to the natural connection between the system of progressive treatment and parole, the system of progressive treatment shall be introduced into the execution of imprisonment and non-imprisonment penalty, and parole shall be regarded as the highest level for the progressive treatment of imprisonment. From the perspective of procedural law, on the basis of judicial reform, the power of submitting mitigation of sentence and parole shall still be conferred on the execution authorities, the power of making a ruling on mitigation of sentence and parole shall still on the people’s court, and the supervision power shall still on the people’s procuratorate. Moreover, the powers of submitting, making a ruling on, and supervising mitigation of sentence and parole shall be perfected in legislation, the criminals and victims shall be entitled with the participation right, and procedures of implementing mitigation of sentence and parole that suitable for Chinese realities shall be constructed to provide a procedural guarantee which reflects fairness, protection of human rights and democratic participation for the new execution pattern that takes “parole as the principal and mitigation of sentence as the complementary measure” formed by the substantive legislative reform.