中德(日)量刑基准之比较研究

Comparative Study of Chinese and German-Japanese Criminal Theory on the Basis of Sentencing

在德日刑法中,受责任主义的规制,责任为刑罚规定了前提和界限,基于预防方面的考量不能僭越责任程度所决定的刑罚。相比之下,中国现行刑法的量刑基准理论与之虽貌合实神离,因为作为其量刑基准的刑事责任的大小是社会危害性与人身危险性评价的加权之值。我国现行量刑基准理论实际上是现行刑事责任理论体系的逻辑延伸。欲求我国量刑基准理论在逻辑上更为科学合理,在价值取向上彰显现代刑法之人权保障机能,则必以改善现行刑事责任理论体系为前提。改造的重点在于纠正将责任评价与刑罚量定混为一体的做法,将之予以分离,使之各得其所。作为犯罪后果负担的刑事责任只能由犯罪的严重性程度来决定,人身危险性因素不能用于评价犯罪与刑事责任,而只能在刑罚最后量定时做有利于犯罪人更新改造之缓和考量。

In the criminal law theory in Continental Countries,criminal responsibility provides the criterion and the limit for punishment considering the principle of responsibility.The penality imposing on the criminal should never go beyond the limit decided by criminal responsibility.However,there is only something in common ostensibly in the theory of basis of imposing penality between Continental Countries and China.In Chinese criminal law theory,the criminal responsibility,as the basis of imposing penality,depends on the total of social dangerousness brung by crime and dangerousness of criminal.The theory of basis of imposing penality is the logical result of the criminal responsibility theory in our country.In order to make the theory of basis of imposing penality in our country more reasonable logically and make its function of safeguarding of human rights more distinct of modern criminal law,we should reconstruct the system of the theory of the current criminal responsibility.It is of very importance that we should separate punishment-determining from the evaluation of criminal responsibility.Criminal responsibility,as the logical result of crime,is only decided by the seriousness of crime.The factors of dangerousness of criminal should never be used to evaluate the seriousness of crime and criminal responsibility,which,however,can only be taken as the factors of prevention of crime,to mitigate or cut down the punishment decided by criminal responsibility.