刑罚目的折衷主义之探析

On the Compromised Doctrine within the Penalty Theories

刑罚的目的是报应还是预防,自18世纪以来在学者中引起纷争,折衷主义学说由此产生。折衷主义认为,刑罚的目的既在于报应犯罪,又在于预防侵害、保护社会。报应和预防是相互统一的,报应构成刑罚的基底,在此基础上刑罚也应当考虑一般预防和教育改造罪犯之目的。在刑事活动的不同阶段,报应和预防又多有不同的侧重。

Since 18th century, there has been a dispute about the purpose of penalty, which is retribution or defense, from which the compromised doctrine come into being. The compromised doctrine insists that the purpose of penalty is not only retribution but defense of society, which should be combined into one. Retribution is the basement of penalty, on which general defense and reformation should be taken into consideration. In the course of penal activity, emphasis on retribution and defense should be varied.