量刑基准的存在根据与形式——兼论法官量刑基准意识的养成

Existing Grounds and Forms of Criterion for Imposing Penalty

量刑基准存在于司法语境中,是法官观念中的内容,转化为现实就是法官自由裁量权的行使。以文字的方式将量刑基准规范化的做法没有现实可能性。可以培养法官对量刑基准的认同感,但不能企图将法官意识中的量刑基准统一化。

Criterion for imposing penalty exists in judicial language. It is the content in judges＇ consciousness. When it becomes the fact, it belongs to the executive part of the right of discretion from judges. In fact, it is impossible to conform criterion for imposing penalty by means of writing. Man＇s consciousness can be affected, but cannot be united. Therefore it is able to develop judges＇ approval to criterion for imposing penalty. However, it is not able to unite the criterion for imposing penalty in judges＇ consciousness.