日本刑法有期刑上限的提高及对我国的启示

On the Increase of the Upper Limit of the Fixed-Term Imprisonment in Japanese Criminal Law and Its Enlightenment to China

在2004年末的刑法改革中,日本将维持了近百年之久的有期刑上限,分别从单罪15年提高至20年,并合罪、再犯加重从20年提高至30年。这一改革也引发了相关的凶恶、重大犯罪法定刑的变化及其论争。此次刑法改革中涉及的诸如人均寿命的提高、有期刑与无期刑之间差距的缩小、"通过严罚化以抑止凶恶犯罪"的"重重轻轻"刑事政策等问题,对同处东亚地区的我国刑法有期徒刑上限修改具有重要的意义。借鉴日本等国家和地区的经验,结合目前的实际状况和司法实践,我国刑法有期徒刑上限宜提高为单罪20年,数罪并罚最高30年。

In the reform of Japanese criminal law at the end of 2004, the almost 100-year-old upper limit of the fixed-term imprisonment was increased from 15 years to 20 years for one crime, and from 20 years to 30 years for the combined punishment for several crimes and recidivists. This reform has brought about changes in and debates on the sentencing of serious crimes. Some criminal policies related to this reform, such as those regarding the increase of the average life span, the narrowing of the gap between fixed-term imprisonment and life imprisonment, and aggravation of the punishment for serious crimes and alleviation of the punishment for light crimes with the purpose to prevent fierce crimes through severe punishment, have important implications for China, which is situated in the same East-Asian region as Japan, in her revision of the upper limit of fixed-term imprisonment in the criminal law. It is suggested that, drawing upon the relevant experience in Japan and other countries and regions and combining it with China＇s situation and legal practice, we should increase the upper limit of the fixed-term imprisonment to 20 years for one crime and 30 years for combined punishment for several crimes.