《刑法》第37条功能定位之曲解与辩护

On the Distortion and Defense for the Functional Orientation of the Article 37 of the Criminal Law

我国刑法理论通说认为,《刑法》第37条具有酌定免刑功能,可以作为独立的免刑事由适用。通说观点得到了司法实践的长期认可和践行。然而,否定论者以刑法第37条立法术语的不明确性、条文位置的非情节性、适用程序的不协调性、适用后果的消极性等理由,对通说观点提出了质疑和批评。但是,经过一番论证表明,否定论者的理由并不能成立,通说观点应当继续坚持。

The general theory insisted that the article 37 of the Criminal Law has the discretionary function of offsetting the penalty, and it can be used as an independent sentencing plot of offsetting the penalty. The general theory has been recognized and practiced in judicial practice. But the negative commentators have criticized and questioned the general theory for that that the legal terminology is not clear, the content of the provision is not about sentencing, the applicable program of the provision is inconsistent, and the applicable consequence of the provision is negative. However, the demonstrations show that the view of the negative commentators is not be established. The general theory should continue to be upheld.