论刑事被害人参与的量刑正当性

The Normal Measurement of Penalty with the Presence of the Victim

量刑程序是在刑事审判活动中,人民法院进行量刑活动的步骤,是刑事审判程序的一个组成部分。英美法系国家量刑程序的特点是量刑程序与定罪程序相分离,大陆法系多数国家没有独立的量刑程序,但评议和表决规则十分严密,比较注重限制法官量刑的自由裁量权。我国没有单独的量刑程序,被害人参与不够、透明度不高,影响了审判公正;我国量刑程序应该包括量刑公开、量刑答辩制度等。

The procedure of measurement of penalty refers to the whole process in which the people＇s court determines the measurement of penalty to the defendant. It is a component of the criminal judicial procedure.The characteristic of measurement of penalty procedure in Anglo-American law system is that the procedure of measurement and that of penalty are independent from each other. However, in the countries of Romano-Germanic family, the procedure is different. There is no independent measurement of penalty but the judgment and vote are strictly carried out. More attention is paid to the restriction of the judge＇s freedom to cut down the measurement of penalty. In our country, there is no independent procedure of measurement of penalty. The victim＇s participation is insufficient, and the transparency of decision making is not clear enough. Resulting from that, the justice of the judgment will sometimes be affected. Hence, in the reform of the procedure of penalty measure-ment in our country, we should establish an open independent measurement of penalty, the reply procedure for the measurement of penalty, and the like.