量刑基准与规范化量刑方法研究

Research on Sentencing Standard and Standardized Sentencing Method

德日量刑基准论以责任主义原则为指导,明确区分责任刑与预防刑,要求只能在责任范围内考虑预防犯罪的需要,确保刑罚的量不超越责任的限度。国内量刑基准理论并不涉及责任刑与预防刑关系的协调问题,理论根基的缺失导致由该母体孕育出的量刑方法在处理犯罪事实与量刑情节上存在先天不足,超越责任上限量刑结果的出现在所难免。对量刑方法改造的合理方案是:遵循责任主义,采用"同向相加、逆向相减法"先计算出责任刑的量,再利用"先宽后严法"调节责任刑,然后对拟定的宣告刑进行检验。如果超出责任上限,可直接将责任刑确定为宣告刑。如此处理,不仅不违背责任主义刑法观,而且顺应了刑罚向轻缓化方向发展的趋势。

The German(Japanese) sentencing benchmark theory is guided by the principle of responsibility,clearly distinguishing between the responsibility of punishment and the prevention of punishment.It is required to consider the need for crime prevention within the scope of responsibility and ensure that the amount of punishment does not exceed the limit of responsibility.The domestic sentencing benchmark theory is based on the fact that the crime constitutes the facts(the conviction plot),based on the system of the four essential crimes,and follows the theory of the "qualitative+quantitative" model of legislation to suit the development of local criminal law.The"Guiding Opinions on Sentencing" stipulates that the successive punishments should be adjusted by the sequential adjustment method and the same-direction addition and reverse subtraction methods,and the case should be considered comprehensively,and the declaration of punishment should be determined according to law.However,under the condition of not distinguishing between the liability penalty and the probationary punishment,it is very likely that the defendant may break the responsibility by using the strict prevention of the plot.The defendant may bear additional penalties.The plan for reforming the sentencing method is to follow the responsibility theory,first calculate the amount of the responsibility punishment,then use the "first wide and then strict law" to adjust the benchmark punishment,and then test the proposed declaration penalty.If the liability ceiling is exceeded,it can be directly the liability sentence is determined to be a sentence.This treatment not only does not violate the criminal law view of responsibility,but also conforms to the trend of the development of punishment in the direction of mitigation.