应然与实然的统一——认定重大立功的刑罚标准的合理性及其适用

The Unity of Theory and Practice——On the Rationality and Application of Penalty Criteria in Determining a Major Meritorious Performance

认定重大立功的刑罚标准应当具有确定性,必须是法定刑,只能被划在无期徒刑这一刑格上。而最高人民法院颁布的刑罚标准完全符合这三项指标,应当在实践中得到坚持和运用。理解"可能被判处无期徒刑以上刑罚"时,应注意"刑罚"通常是法定刑,当被检举人案件较检举人案件先行判决时,此处的刑罚是宣告刑。认定重大立功的刑罚标准时无需同时考虑量刑情节。

The penalty criteria in determining a meritorious performance should be fixed. It must be prescribed penalty instead of the sentenced penalty, and it should not exceed the penalty of life imprisonment. The penalty criteria stipulated by the Supreme Court is in total accordance with the above three standards and therefore should be adhered to in practice. As to the understanding of ＂the possibility of the penalty of life imprisonment or above＂, it is important to note that ＂penalty＂ usually means prescribed penalty. If the criminal exposed is sentenced before the exposing criminal, whether the meritorious service is major or not, it should be decided according to the factual sentence of the criminal denounced.