量刑信息系统建构的域外经验与中国方案

量刑信息系统收集和整理大量的既往判例以供法官搜索与待裁量案件最相似的生效判例,并通过查看这些生效判例量刑因素的类型与范围、量刑因素对量刑的影响情况、量刑结论分布状况、对应判例的具体案情等信息,最终在综合法官量刑经验的基础上,作出最适合待裁量案件的量刑结论。这种参考既往量刑信息为待裁量案件提供指引的系统,较早在加拿大、澳大利亚、英国、荷兰、日本、爱尔兰、以色列等国的相关司法领域运行,并均对量刑平衡的实现颇有助益;中国司法实践采纳成文量刑指南为基础的量刑模式已有十余年,理论与实务对此褒贬不一,类案检索制度与智慧法院建设的落地,为量刑信息系统的构建提供了规范依据与技术支撑。通过建立以量刑指南为本、量刑信息系统为辅的二维体系,可以充分化解限制法官自由裁量权等弊病,同时还具有保障指南合理适用率、为法官提供借鉴量刑经验之便捷渠道、为量刑指南主管部门提供实践量刑信息三大功能。在量刑信息系统构建初期,宜将量刑评议表与生效裁判文书作为信息的基本内容;而在延展效能上,应通过量刑信息系统建立起量刑与监狱资源动态平衡的良性互动关系。

The sentencing information system,by collecting and sorting out past sentencing precedents,enables judges to search for effective precedents in the system that are most similar to the case under trial.By examining the types and scope of sentencing factors in these effective precedents,the impact of sentencing factors on sentencing,the distribution of sentencing conclusions and other details of the precedents and combing them with their own sentencing experience,judges will be able to reach a sentencing conclusion that is consistent with the overall sentencing experience in the past and most suitable for the case under trial.This sentencing information system,which takes judges’previous sentencing information as a reference to provide guidance for the trial of cases and has operated in four provinces in Canada,New South Wales in Australia,the High Court of Justiciary in Scotland,Northern plural-chamber courts in the Netherlands and courts in Israel and other jurisdictions,is conducive to the realization of sentencing balance.The sentencing practice based on statutory sentencing guidelines in China in the past decade has received mixed reviews.While achieving standardization of sentencing,it also has many drawbacks,such as restricting judges’discretion.Establishing a similar case retrieval system and constructing“smart courts”provide a normative basis and technical support for the construction of the sentencing information system in China.By building a two-dimensional system with sentencing guidelines as the basis and the sentencing information system as the supplement,China can adequately address many shortcomings of the one-dimensional sentencing guide scheme.Furthermore,the sentencing information system also has three major functions,namely ensuring the reasonable application rate of the sentencing guidelines,providing convenient channels for individual judges to learn from past sentencing experience,and providing practical sentencing information to the competent department responsible for sentencing guidelines.In terms of the preliminary construction of the sentencing information system,because currently the sentencing reasoning system has still not yet been implemented in a substantive way,it is difficult for China Judgments Online to achieve true and comprehensive transmission of sentencing information.Unconventional content such as sentencing departure should be filled in by judges in the form of written descriptions.In the long-term construction of the sentencing information system,once the basic system is functioning properly,the task of using this system to establish a dynamic balance between sentencing and prison resources can be placed on the agenda.Through sentencing data analysis,decision-making departments can provide a decision-making basis for the timely adjustment of prison resources from a macro perspective,and factors that cause abnormal sentencing can be accurately located through big data analysis,and the provisions of“sentencing guidelines”can be made highly scientific and rationalized from a micro perspective.