新《刑法》罪责刑相适应原则的理论构造

Theoretical Construction of the Principle of Matching Punishment with Crime and Responsibility by the New Criminal Law

本文认为 ,新《刑法》第 5条所规定的不是简单的罪刑相适应原则 ,而是以刑事责任为纽带 ,把罪行相适应原则和刑罚个别化原则有机结合起来 ,使刑罚的运用既注重犯罪行为又兼顾犯罪人 ,使刑法做到了公正与功利、一般预防与特殊预防、打击犯罪与保障人权的统一。

This article argues that what is stipulated in clause 5 of the new Criminal Law is not simply the principle of 'punishment matching with crime', but unifies the principle of 'punishment matching with crime' and the principle of 'punishment for individual cases' with the criminal responsibility as links. To set the punishment, it takes both the criminal acts and the offenders into consideration. Thus, the Criminal Law integrates justice with utility, general precautions with special precautions, cracking down on crimes with safeguarding human rights.