数额犯法定刑合理性探析

The Study of the Reasonability about the Statutory Sentence of the Crime of Amount

数额犯的刑法地位已得到学界的普遍认可,数额犯的本质是行为对法益的侵害,而不是犯罪所涉及的数额。数额犯法定刑的确定,应该以犯罪构成决定法定刑刑种,以影响行为的社会危害性和人身危险性程度的十大要素决定法定刑幅度为基本原则。在贪贿等数额犯的法定刑幅度确定中,《美国量刑指南》可以作为合理参照。

The status of the crime of amount in criminal law has been widely recognized in academic circles, and the essence of the crime of amount is the violation of the law interest rather than the amount involved. The determination of the measurement of penalty should meet with the principle of crime constitution, social harmfulness and personal fatalness. American Sentencing Guidelines can be a reasonable reference in determining measurement of penalty.