量刑情节的构成理论初探

Study on the Theory of Constitutive Conditions about Circumstances for Sentencing

从总体上讲,对量刑情节构成理论的研究还相当薄弱。通过与犯罪构成要件的类比,可以对研究量刑情节构成要件的必要性,以及量刑情节构成要件的界定、类型、具体构造等得出初步结论。量刑情节的构成要件与量刑情节的功能设定之间具有互动性:量刑情节的功能定位越明确,量刑情节的构成要件设置也应越清晰;反之,量刑情节的构成要件弹性越大,量刑情节的功能也就不确定。

Generally speaking, the study on the theory of constitutive conditions about circumstances for sentencing is still quite weak. In these aspects, for example, the necessity for studying in the field, confirmation of constitutive conditions about circumstances for sentencing, types and concrete structure of circumstances for sentencing, etc., primary conclusions can be drawn through comparing with criminal constitutive conditions. There is mutual conditionality between constitutive conditions about circumstances for sentences and functions of circumstances for sentences. On the one hand, the more specific are functions of circumstances for sentences, the more plain are constitutive conditions about circumstances for sentences; On the other hand, the more blurry are constitutive conditions about circumstances for sentences, the more uncertain are functions of circumstances for sentences.