刑事自由裁量权基本问题

刑事自由裁量权是指在刑事法适用过程中,涉及刑事法适用的官方人员在所适用的刑事法规则内容允许的范围内,有权在可以采取的多种行为中作出选择。刑事自由裁量权具有绝对性,同时也具有相对性。绝对性是指裁量行为是任意的,不受限制。相对性是指刑事自由裁量权仅仅是一种弱式自由裁量权。行使刑事自由裁量权的主体涉及公安人员、检察官和法官。公安人员和检察官行使的自由裁量权主要是依据刑事诉讼法的程序性权力。法官行使的自由裁量权除程序性权力之外,主要是依据刑法的实体性权力。

Criminal right of discretion refers to that during the application of criminal law, the officials who are involved in the application of criminal law have the right to make choices within the limits of the rules of criminal law and among so many acts in which they could take measures. The criminal right of discretion has absolute nature and relativity. The absolute nature refers to that the discretional act is arbitrary and without limitation. The relativity refers to that the criminal right of discretion is only a kind of weak right. The subject who exercise criminal right of discretion include public security officer, court prosecutor and judicial officer. The right of discretion which is exercised by public security officer and court prosecutor is mainly according to criminal procedural law and the power of procedure. The criminal right of discretion which is exercised by judicial officer is mainly according to substantive power of criminal law.