论量刑合法

On Legality of Sentencing

量刑合法是罪刑法定原则在量刑上的要求和表现,意即量刑符合刑法规定,但这并不意味着只符合刑法分则的规定,而应是综合地符合刑法总则与分则的所有相关规定。就法定刑而言,量刑合法并不只是静态地符合法定刑的规定,而是还动态地符合法定刑的司法变型即处断刑、宣告刑、执行刑或免刑的要求。量刑合法与量刑合理并不是彼此分离的两个独立之物,而是同时实现和互为表里的有机统一体,其中,量刑合法以量刑合理为实质内容,并表现为形式合理与实质合理的有机统一。

Legality of sentencing is the appeal and embodiment of nullum crimen sine lege in the process of sentencing, i.e. , to make the punishment fit the crime. Such fitness, however, should no be construed only in accordance with the provisions of some specific parts of the criminal law but should be determined comprehensively under all relevant provisions of the general as well as special parts of the criminal law. In terms of the punishment legally prescribed, legality of sentencing does not merely mean statically complying with legal rules, but also indicates dynamically responding to judicial modifications, that is, conforming to the requirement of the punishment preliminarily supposed by judges, the punishment finally pronounced, the punishment really enforced or exemption from punishment. Legality of sentencing and rationality of sentencing are two independent but cannot be separated concepts that are realized simultaneously and connected organically, in respect of which, legality of sentencing takes rationality of sentencing as its essential contents while revealing an organic uniformity of rationality both in formality and in essence.