对常见犯罪量刑基准的经验分析

Sentencing Benchmark of Common Crimes

确立量刑基准旨在厘清量刑步骤和常见规则。个罪基准刑的确定应当以司法解释、法院量刑指导意见中类型化经验和指导性案例中具体经验为基础;基准刑对应的基准事实应是既遂状态下反映该罪特有手段或者实害程度的事实;基准刑即使重合于法定刑中间线也不宜确立中线论的指导地位。选择确立常见犯罪的量刑基准不仅是回应现实需要,借此划分等重线,还能避免因过度技术化而反受其累。

Establishing the sentencing benchmark is to clarify the process and common rules of sentence. According to our sentencing theory, the logical initial point to discuss sentencing process is the constitutional facts. But in fact, the theoretical model to determine the nature of an offense could not provide the concrete process of sentence. The norm facts corresponding the norm sentence should be such verities which could reflect the specific mean and infringing extent of the crime. It will be in accordance with the cognitive laws of ＂from objectivity to subjectivity＂ and ＂from phenomena to essence＂ to take the norm facts as the objective fundamental of sentence. The establishment of the sentencing benchmark of a specific crime should be based on the criminal judicial interpretation made by Supreme People＇s Court and the type experiences in the sentencing guidance of local people＇s courts. They are the main way of centralizing and typing the sentencing experiences. Without such original forms of experiences, only confusion can be achieved in exploring the norm facts and sentencing benchmark. Where they are not enough to guide the specific sentence, the conclusions and reasons made by judges in instructive cases should be intensively considered, from which one should find technique rules of sentence which can withstand the rational inquiry. It is unrealistic and unnecessary to establish the sentencing benchmark and corresponding norm facts of each of the more than 400 accusations in the Criminal Law and its amendments, since common crimes are more frequent in judicial trial, and it is less difficult to sum up their sentencing experiences and clear up their sentencing process.