我国刑法对刑罚折中论的重构

The Restructure of Integrated Theory of Punishment by the Criminal Law of China

刑罚以剥夺犯罪人的权益与施加道德谴责为内容,不仅可以剥夺人的财产和政治权利,甚至可以剥夺人的自由和生命。对刑罚的正当化根据这一问题的解答,既构成了刑罚理论的基础,更决定了刑法的精神。应当在分析刑罚理论上的报应刑论(绝对主义)、功利刑论(相对主义)与折中论(并合主义)的内涵与价值,指出它们分别存在的合理性和弊端,并对折中论进行了再思考,提出折中论是理想的刑罚观念。最后联系我国国情与公民的一般价值观念,根据刑罚的本质,分析我国具体情况,对折中论进行重构,总结出一种适合我国刑罚适用的以报应刑论为主的折中论,并在此基础上建立一种中国化的合理的刑罚根据学说。

The main substance of penalty involves depriving the rights of the criminal and condemning the criminal morally, which could deprive one＇ s property, political rights, and even the liberty and life. It is quite important to solve problems existing in the studying of the justification of punishment, for the solution is an indispensable part of the basis of the Criminal Law, and is determinant to the essence of the Criminal Law. Analyzing the content and value of retribution, utility and Integrated Theory of Punishment in the paper, the author points out their virtue and limitation respectively , rethinks about the Integrated Theory of Punishment, and confirms that it is the ideal con- cept of punishment. By connecting the theory with the fact of our country as well as the common value of citizen, the author analyzes the physical circumstance of our country, reconstructs the Integrated Theory of Punishment accord- ing to the essence of punishment and summarizes a theory based on retribution, which adapts to the punishment for China.