论刑罚“报应限制功利”在自首量刑中的实现

On the Application of the Principle of "Retribution Restricting Utility" in Punishing Voluntary Surrender

刑罚的制定、适用、执行,既考虑报应性规定,又考虑功利性规定。当两者出现冲突时,功利应让位于报应。自首属于量刑情节,对其适用自然不应当违背刑罚的根据这一根本前提。在对具备自首情节的罪犯量刑时如果不能做到兼顾两者时,只有功利让步于报应,对自首情节不予从宽处罚,以实现量刑公正。

Criminal penalties are stipulated and enacted by taking both their retributive role and utilitarian role into consideration. When the two are in con- flict, utility should give way to retribution. As voluntary surrender is a factor to be considered when deciding on a punishment, the principle should never be violated. Therefore, when sentencing criminals who have voluntarily surrendered and retribution and utility cannot be accommodated, utility has to give way to re- tribution and lenient punishment will not be considered.