对量刑幅度负效应之评估与适度刚化之对策

On Evaluation of the Negative Domino Offect from Sentencing Extent and the Proper Stiffening Countermeasures

量刑幅度存在着负效应。由于语言表述不能所导致规则缺失因而缺乏必要的制约,容易出现权力滥用。由于犯罪人在犯罪前无法知道具体的量刑幅度,因而很难对犯罪行为的选择构成制约,,难以据此降低犯罪行为的社会危害性。有必要适度刚化量刑幅度范围内的量刑权,建议采取如下立法措施:法定量刑基准,在量刑基准的基础上创设狭窄的通用量刑幅度,单独规定判处无期徒刑和死刑的条件,积极构建法官自由裁量权的制约机制。

Extent of discretionary action of sentencing is a common mode of measure of penalty, which lays basis on the two main doctrines about the nature of penalty substantially, theory of retribution and utilitarianism. On one hand it has the following advantages： it contributes a lot to realize the object of exact retribution ; it tunes the cost of crime to control the damage of crime. On the other hand, it also has the following disadvantages： it contributes a lot to the trial power misuse on account of no rule to confine, which caused by the expression limitation of language it has few effect in control the social damage of crime because the criminals always have no idea of the criminal law, especially the concrete contents about measure of penalty. In order to dealing with this situation, we should take the following measures to stiffen the extent of discretionary action of sentencing properly： stipulate base penalty of measurement clearly in criminal law; construct a common extent of discretionary action of sentencing and stipulate the conditions of life imprisonment and death penalty; construct mechanism to limit judgers＇discretionary power.