裁量活动与量刑规范:论确定刑罚的基础

Sentencing Practice and Norm: On the Basis of Sentencing

国家确定刑罚的正当性建立在对刑罚预防效果的假设之上,但实际刑罚裁量却只是一个以确定行为严重性为导向的、仅对有限报应性变量进行笼统性评价的活动,而刑罚的预防目的却始终处于边缘化位置。因此,从实际刑罚裁量中并不能得出说明国家确定刑罚正当性所需的预防性效果。事实上,刑罚裁量始终只是一个建立在与不法相抵偿这个单一目的之上的活动,行为严重性决定了刑罚的严厉性。但根据我国理论通说的理解,对作为量刑基础的"所犯罪行"与"承担的刑事责任"却并不能纳入行为严重性的判断。因此,作为决定刑罚严厉性的量刑基础,行为严重性应当取代刑法所规定的"所犯罪行"与"承担的刑事责任"。

The legitimacy of penalty is built on the assumption that it has the preventive effect, but the sentencing in practice is only to determine the severity of behavior with the limited and retributive variables, therefore the preventive purposes is always in the marginalized position. For this reason, the preventive effect of penalty cannot come from the sentencing practice, which explains the legitimacy of the penalty. In fact, the sen- tencing is always a discretionary activity which has the only aim of retribution. So the seriousness of behavior has decided the penalty. But according to our criminal law theory, the offence and the responsibility, which is stipulated as the basis of sentencing, cannot be included in the judgment of behavior severity. So the serious- ness of behavior, which functions as the basis of sentencing, should replace the stipulation of offence and the responsibility in criminal law.