宽严相济刑事政策的法律化

The Legalization of Criminal Policy of Combining Leniency and Harshness

我国古代和西方国家均不乏宽严相济的思想和规定,刑事政策变迁及适用离不开当时的客观环境。现阶段宽严相济刑事政策的发展轨迹最终将体现在刑事立法的相关规定上,包括实体法和程序法相关规定的修改。具体地,在刑法上应将宽严相济写入刑法总则、缩小死刑适用范围等,在刑事诉讼法上应规定沉默权、规定刑事和解制度等;在未成年犯罪刑罚立法上应对未成年犯限制或者禁止某些刑种的适用,建立未成年犯缓刑制度,取消未成年犯罪记录等。

The idea of combining leniency and harshness has been embodied in the thoughts and rules both in ancient China and Western countries. The development and application of criminal policy can not be separated from its objective environment. The trace for the development of the criminal policy of combining leniency and harshness ultimately consists in regulations regarding the criminal legislation, including the revision of both substantive law and adjective law. In practice, this policy should be written in general provisions of criminal law, and the application of capital punishment should be strictly monitored. Rights for silence and criminal reconciliation system should be stipulated by criminal suit law. As far as the legislation on minor criminals is concerned, probation system for minor criminals should be established, and conditions concerning cleaning records of crime for minor criminals should be given.