判罚结论的理性证立——由量刑说理切入

pproach and Methods of Judgment Reasoning

面对剥夺自由、财产直至生命的判罚,任何人要求给予明确、充分理由都是正当的;清晰言说判罚理由又是困难的,总结法律人经验和智慧,有助于理性证立结论;避免判罚隐性理由偏离规范要义还是必要的,在司法信度不高之当下,要求判罚说理尤其可以防止均衡原则的空心化,追随司法足迹,探知那些经得起拷问且具操作性的量刑步骤和方法,可在法定刑空间挤出偏私与随意;整体理解判罚说理更是决定性的,因为依赖于程序支持,保留判罚者难予言传仍可意会的心证成份,司法结论才真正具有权威性。

It is reasonable for anyone to request the judgment reasoning,and it is an unavoidable fact that the judge is difficult to explain the amount of punishment corresponding to the specific crime. Therefore,it would support judgment reasoning for forming a set of application theory that can withstand legitimate torture and be of good operation. It could guide judgment reasoning for the appointed corresponding punishment amount by a set of applicable circumstance rules that the judicial community confirm. It could reason things out on the basis of values,rules and experiences for the establishment of a set procedures,requiring the judge find specific laws according to the facts and recording the process of rational justification. In the field relying on both statute and judicial activism,the aim of connecting those three paths is to rebuild the authority of the law.