法官对社会伦理影响自由裁量权的情结与纠结——兼论期待可能性在刑事审判中的张力

Judges′ Tendency and Contradiction on Discretion Impacted by Social Ethics

当前法官对量刑幅度仅有10%的自由裁量权,而社会伦理则是影响该幅度调整的主要因素,它是民众对是非善恶所形成的共识的集中表达。法官作为社会主体,对社会伦理影响其自由裁量权具有一种本能情结;而法官所从事职业的专业属性又要求其必须遵循罪刑法定原则以防裁判擅断,这导致法官纠结于社会伦理能否影响自由裁量权。但实际上情结与纠结本身并无实质冲突,两者最终的落脚点都是追求公正。社会伦理对个别公正的关注与期待可能性的宗旨具有相通之处,从本质上说,两者都是对具体人性的尊重和关怀。

Social ethics is a centralized expression of the public consensus about the good and evil.Currently,sentencing range is mainly influenced by social ethics;judges only have 10% discretion for it.As a social subject,the judge has an instinct tendency to his discretion impacted by social ethics.However,judges who devote themselves to judicial work are required that they must follow the principle of legality,which makes judges tangled with the issue whether social ethics could influence discretion.In fact,the two situations don′t contradict,because justice is their same ultimate goal.Social ethics concerns the individual justice,which is in common with the purpose of the anticipated possibility.In essence,both reflect respect and concern about humanity.