酌定情节非法定化的反思

Ponderation on the Non - legislativization of the Circumstances for Discretion

刑法理论工作者不能不考虑立法是否适当，就加以全力地维护；也不能因为某个问题成为一条刑法规范，就给予肯定；更不能因为刑法对某个问题的冷落，就予以顺应。顺着这一思路，笔者反思了刑法中的酌定情节。我们认为，对于酌定情节，法律规定不规定是一回事，法律应当不应当规定又是另外一回事。刑法酌定情节的几近空白，并不必然意味着立法的正确与合理，恰恰相反，酌定情节应当而且必须全面法定化，以适应刑事法治的需要。

Workers on criminal theory should not defend the legislation without evaluating its appropriateness; nor should they give their approval just because a certain issue has become a criminal norm. Above all, they should not take it for granted if some issue is neglected by the criminal law. Following this train of thought, we talked about the circumstances for discretion in the criminal law. In terms of that, in our opinion, whether there are relevant provisions is one thing, and whether there should be is another. The inadequate contents of the circumstances for discretion does not necessarily mean that the legislation will be correct or reasonable. On the contrary it is supposed to be or even should be legislativized thoroughly in order to meet the needs of the criminal constitutionality.