摘要
量刑关系到被告人的人权保障乃至国家的人权状况。量刑必须以刑罚的正当化根据为指导,并合主义要求妥善处理好责任刑与预防刑的关系。贯彻责任主义是尊重人权的基本要求,点的理论是消极的责任主义的必然结论;法官必须区分影响责任刑的情节与影响预防刑的情节,并且只能在责任刑的点之下考虑预防犯罪的目的,不能为了一般预防的需要对被告人从重处罚,任何场合都不得在责任刑的点之上量刑。
The passive Responsibilism, ＂nulla poena sine culpa＂, is a commonly agreed criminal principle and the basic requirement of human rights. Penalty measurement concerns the protection of the human rights of defendants and even the general human rights condition in a country, thus the Point theory of penalty measurement, which is the inevitable conclusion of the passive Responsibilism, should be adopted. According to the Point theory, criminal responsibility deter mines the toplimit of a punishment. Only under this point can judges consider the necessity of crime prevention. The opinion and its practice of measuring penalty beyond the toplimit decided by responsibility for the necessity of crime prevention or sentencing a heavier punishment under the responsibility--decided penalty （point） for the needs of general prevention not only go against Responsibilism, but also violate defendants＇ dignity. In fact, synthesis idealism calls for a balance between responsibility--related and prevention --related punishment and judges need to tell which one is influenced by a special plot, because prevention--related plots can be only considered under responsibility--decided penalty （point）. The principle of suiting punishment to crime, which is interpreted as heavy punishment fits heavy offense and light punishment fits minor offense, is just for responsibility--decided penalty, not for declaratory penalty. As to declaratory punishment, such principle should be applied asymmet- rically. Namely, in accordance with the Point theory, this principle means only that a punishment can not exceed the responsibility--decided toplimit. In this way, although this principle can be interpreted as light punishment fits minor offense, a heavy penalty does not always follow a heavy crime. On the contrary, a light punishment may be sentenced considering minor needs of preven- tion, even if a heavy crime is accused. To put it bluntly, the principle of suiting punishment to crime permits a sentence under responsibility--decided penalty （point）. Neither Current criminal theories guiding discussion on the criterion and method of penalty measurement nor the judicial practice insisting on the normalization of penalty measurement fully consist with Responsibilism. For criminal theory and practice, the highest priority is to carry out Responsibilism in the theory and practice of penalty measurement.
出处
《法学研究》
CSSCI
北大核心
2010年第5期128-145,共18页
Chinese Journal of Law
关键词
责任主义
量刑基准
罪刑均衡
量刑方法
Responsibilism, criterion of penalty measurement, suiting punishment to crime, method of penalty measurement
