酌定量刑情节法定化研究

Study on Legalization of Discretionary Circumstances of Sentencing

酌定量刑情节是指法官在量刑时应当考虑并且能反映行为人人身危险性及其社会危害性的主客观事实。酌定量刑情节非法定性不仅违背了刑法基本原则,更导致法官滥用自由裁量权等问题。基于罪刑法定原则的要求和酌定量刑情节对量刑的普遍性意义,有必要对刑法第62条和第63条进行相应修改。

The diseretionarv circttmstanees of Sentencing means when the judge takes the measurement of penalty; he should take the subjective and objeetive facts into consideration, which Can reflect the actor＇s personal risks and social harmfulness. The illegalization of discretionary to the judge s abuse of discrction and other circumstances of sentencing not only violates the primary principles Of Criminal Law, but also leads to the judge＇s problems. On the basis of the requirernents of the doctrine of a legally prescribed puriistiment for crime and penalty and the general meaning of the diseretionary circumstances of sentencing, it is nec6ssary to amehd the Article 63 and Article 63 of Criminal Law.