制度理想与行为选择:刑罚目的一体化剥离及其宣谕

The System Ideality and Choice of Conduct: Separation of the Integration of Prevention and Retribution and Its Connotation

刑罚目的是报应抑或预防的持久论争,最终在互相借势和依势中走向妥协,并形成融报应和预防于一炉的刑罚目的"一体化"论,其旨意在于既实现预防又实现报应正义。但预防失效引起的反思性思考、西方行为学发展中的现实人有限理性和有限意志论对理性人论祛伪,佐证了预防论实现的必要条件的不自足;犯罪人行为选择的双曲贴现和满意原则对犯罪人行为的牵引,翻转出预防观理性人逻辑前提与现实人行为选择的异曲;监禁刑特殊预防的负效应、预防性刑事立法遭受的诟病及社会对刑罚该当度内报应正义的认同,使刑罚的犯罪预防止于制度构建。刑罚预防逻辑与现实人行为选择背离使刑罚一体化与实践剥离,宣谕了刑罚应基于(潜在)犯罪人的非理性,慎重构建刑罚样态,采取多维预防措施修饬和提升人类理性继而矫正和预防犯罪。

The argument over purpose of punishment for prevention or retribution has lasted for a long time and upon compromise has finally reached an ＂integration＂theory composed of both prevention and retribution.However,the necessary condition for realization of prevention is insufficient upon reflection aroused by inefficiency of prevention theory and due to the bounded rationality and bounded free will which has proved the fallacy of rational man. The hyperbolic discount of conduct choice and the traction of criminal conducts by principle of satisfaction have also proved the contradiction between the logic ground of rational man and real choice of conduct made by the criminal. Besides,the negative influence of particular prevention for imprisonment,the critics on preventive legislation as well as the public recognition of retribution within certain extent of justice all lead to the result that the prevention theory can be only feasible in theory rather than in practice. The deviation of prevention logic and from real choice of conduct has resulted in separation of the integration theory from practice,which indicates that punishment should be based on the irrationality of potential criminal,thus defining the category of punishment should be cautious,and versatile prevention measures should be adopted to improve the human rationality and further to correct and prevent crimes.