初犯的刑法学界定

A Study of the Definition of First Offense in Science of Criminal Law

初犯 ,在刑法学上应当界定为 :行为人在第一次被有权司法机关以生效法律文书形式确定有罪之前实施的全部犯罪行为。初犯作为量刑情节 ,对司法实践具有重要意义 ,在某些案件中 ,初犯还是法定量刑情节。初犯的刑法学界定应当有别于犯罪学界定 ,因为两者研究的出发点和目的不同 ;刑法学上与“初犯”相对应的概念应是“再犯” ,而不是“累犯”。初犯的刑法界定应当与相关法律法规紧密结合 ,还应当充分考虑初犯与再犯区别量刑的理论依据和基础 ,即犯罪人的人身危险性、是否受过刑法谴责性警告。

According to the science of criminal law, first offense refers to all the criminal acts committed by an offender who hasn't been found guilty by any authoritative judicatory in any form of effective legal documents. As circumstances of sentencing, first offense is thought to be important in judicial practice. First offense in science of criminal law is different from it in the criminology, because their starting points and aims are different. In the science of criminal law, “first offense” versus “second offense”, but not cumulative offense. The definition of first offense in criminal law should be closely related to relevant laws and regulations, and the theoretical basis for distinguishing sentencing between first offense and second offense should be fully considered, too. The following factors should be taken into account such as personal fatalness of offender, criminal rebuking caution, the degree of contempt of the criminal judicial system, and criminal social factors etc.