论预防刑的裁量

On the Sentencing Discretion of Punishment Aimed at Prevention

刑罚的正当化根据是报应的正当性与预防犯罪目的的合理性,基于报应所裁量的刑罚是责任刑,基于预防犯罪目的所裁量的刑罚是预防刑。裁量预防刑时应当重点追求特殊预防,不得使积极的一般预防优于特殊预防;裁量预防刑时难以追求积极的一般预防,不得追求消极的一般预防;但是,如果一般预防的必要性小则应当从宽处罚。由于预防刑的裁量是刑罚个别化的过程,所以,不能追求量刑平衡。在任何犯罪中,表明被告人再犯罪危险性小的情节都应当受到重视,对罪行严重的犯罪不适用或者严格适用酌定从宽情节的做法,违反刑罚目的。裁量预防刑时,对影响责任刑的情节与影响预防刑的情节,既不能进行综合判断,也不能使之相互抵消;既要考虑类型化的情节,也要考虑非类型化的情节。

The justification for punishment is the legitimacy of retribution and the rationality of the purpose of crime prevention; accordingly,the punishment sentenced on retribution is the punishment based on liability,while the punishment sentenced on crime prevention is the punishment aimed at prevention. In the process of sentencing punishment aimed at prevention,the pursuit of special prevention shall be emphasized; while the positive general prevention shall not be put on the priority over special prevention. In the process of sentencing punishment aimed at prevention,it is difficult to pursue positive general prevention and it is not right to pursue the negative general prevention. However,if the necessity of general prevention is relatively small,the punishment shall be sentenced leniently. Since the sentencing discretion of punishment aimed at prevention is a process of individualization,the balance of sentencing cannot be achieved. In any crime offense,any circumstance evidencing there is a small risk of re-offending shall be taken into account seriously. Those practices which do not apply or strictly apply discretionary lenient punishment to serious criminal offenses have violated the purpose of punishment. In the process of sentencing punishment aimed at prevention,neither can the circumstance affects the punishment based on liability and the circumstance affects the punishment aimed at prevention be taken into account as a overall comprehensive judgment,nor can they be offset with each other; the circumstance which is legally typed shall be taken into account,and the circumstance which is not legally typed shall be taken into account either.