刑罚适应性的确立与确证研究

Research on Elaboration and Corroboration of Proportionality of Criminal Punishment

适应性是现代社会的核心特性。现代法治社会必然也会遭遇适应性问题如何有效化解的现实瓶颈。延伸至刑罚适用领域,确定性和灵活性是其基本特性,适应性则是其核心特性。刑罚适应性的内涵是在刑事法治理念的支配下,通过有效消解确定性与灵活性间的紧张关系,从而积极促进法律的适应性在制刑、量刑和行刑三个重要环节中有序而合理的实现。刑罚适应性的外延较为广泛,几乎囊括包括刑罚适用在内的社会生活的各个面向。刑罚适应性同时能够协调诸如成本与效益、报应与预防、威慑性与宽和性、惩罚性与人道性、公正性与个别化等刑罚基本关系范畴。概言之,刑罚适应性概念的提出既注重对具体问题的分析和解决,也基本满足刑罚本身对制度实践理性的价值追求。应当在刑罚论研究中提倡并践行刑罚适应性的理念、理论、制度及其相关命题。

Proportionality is one of core characteristics of modern society.The modern society under the rule of law will inevitably encounter the practical bottleneck of how to resolve the issue of proportionality.Regarding the field of application of criminal punishment,the certainty and flexibility are its basic characteristics and proportionality is its core characteristic.The connotation of proportionality of criminal punishment is to,under the idea of criminal rule of law,by effectively dissolving the tension between the certainty and flexibility,effectively promote the orderly and reasonable realization of proportionality of the law in three important links,i.e.formulation of criminal punishment,sentence of criminal punishment and execution of criminal punishment.The denotation of proportionality of criminal punishment is relatively broad and almost encompass all facets of social life including the application of criminal punishment.The proportionality of criminal punishment can be utilized to reconcile such fundamental relationships of criminal punishment as cost and benefit,retribution and prevention,deterrence and leniency,punitiveness and humanity,and fairness and individualization.In summary,the concept of proportionality of criminal punishment meets the requirements of paying attention to the analysis and resolution of specific problems and satisfying the value pursuit of practical rationality of the system by the criminal punishment itself.The concept,theory,system and relevant propositions of the proportionality of criminal punishment should be advocated and practiced in the research of the theory of criminal punishment.