酌定减轻处罚刍议

On Mitigating a Punishment at Judicial Discretion

"不具有本法规定的减轻处罚情节"并非酌定减轻处罚的适用条件,"案件的特殊情况"也不限于"涉案的特殊因素",而应包括"案件的一般性情节"。酌定减轻处罚的适用程序过于严格,带来诸多弊端,应取消最高人民法院核准的要求,将其适用权交由各级法院的审判委员会行使。酌定减轻处罚既可是刑期的减轻也可是刑种的减轻,但不能减至法定最低刑,更不能减至免除处罚;酌定减轻处罚并不以‘减一格’为限。

The existence of ＂mitigated punishment circumstances under the provisions of this Law＂ is not the condition of applying mitigated punishment at judicial discretion. ＂ Special circumstances＂ not only include ＂the special factors involved in case＂ , but also include ＂the general details of the case＂. The application procedure of mitigated punishment at judicial discretion is so strict that it gives birth to a series of problems. Mitigated punishment at judicial discretion should be decided by the trail committee of all ranks of courts, not necessary to be approved by the Supreme Court. Mitigating a punishment at judicial discretion can mitigate either the penalty term or the penalty categories, but cant be reduced to the minimum statute penalty or exemption from penalty. Mitigating a punishment at judicial discretion doesnt be limited to ＂reducing one space＂.