规制司法裁量权的理念与路径——由重构量刑活动规则谈起

Idea and Route of Regulating Judicial Discretion:Reconstruction of Sentencing Regulation

司法裁量权被德沃金称为"弱意义上的自由裁量权",承载着将具体个案与刑法规范进行无缝对接从而宣示社会公正与保障人权之理念。刑罚裁量权作为微观层面的司法裁量权,其与行为人的人身自由和财产权益密切相关,应予谨慎使用。从重构量刑活动规则入手,由公诉机关主导建立犯罪人信息调查制度,进而规范公诉人提出量刑建议的内容,强化对法官判罚说理的要求,才能确保量刑活动的公正合理,进而才能彰显司法的公信力和权威性。

Sentencing discretion pertains to Dworkin’s weak discretion, and seamlessly butts facts of the case and criminal rules, which aims at voicing the purposes of basic social security and human rights protection. Although sentencing is an activity which has a rich color of judicial activism, the sentencing discretion obviously can not simply base in the name of rightfulness and justifiability. It should abide a set of substantive rules, which take the criminal responsibility as the value basis and depend on lawyer’s experience. At the same time, in order to ensure the substantive rules to be strictly followed, the sentencing process must be set up and run, which eventually prompts the judge to fairly use the discretion and rebuild the judicial reliability and validity.