中国刑法特点与司法裁量空间

The Characteristic of Chinese Criminal Law and the Scope of Judicial Discretion

中国刑法的突出特点是将犯罪的结果.数额作为定罪和量刑的基本依据,具有偏向客观的色彩,这种特点影响了司法裁量权的行使,导致司法人员定罪与量刑的余地有限。其优点在于缩小犯罪圈、节约司法资源,且操作简便,能够在客观上保持公平;其不利之处是未体现个别预防、教育刑思想,忽视对犯罪人人格的评价以及对犯罪的具体行为方式的评价。未来立法的趋向应是改变片面以数额.结果为依据的客观化倾向。

Chinese criminal law has obvious characteristic that considers the criminal result or amount as basic condition to determine guilt and weigh the penalty. This characteristic tending to objectivity has influenced the judicial discretion ＇and resulted in a limited scope of guilt and penalty determination, of which the advantages rest with narrowing down the criminal circle, economizing the judicial resource, being simple to operate, and being capable of keeping objective equity, while the disadvantages com- prise not reflecting the idea of individual prevention and educational penalty, and ignoring the evaluation of criminal personality and concrete criminal behavior manner. The intending legislation shall change the objective tendency partially according as the resuit or amount.