从刑罚目的的实现反思刑罚设置——以高犯罪黑数的经济犯罪为例

The Introspection on the Establishment of Penalty from its Purpose——Based on the Economic Crimes with Numerous Misconduct Offenses

本文围绕刑罚目的的实现这一主线,基于预防主义的立场,以一般预防目的为主要分析对象,从经济犯罪的特点出发,论述了刑罚目的的实现过程和其中遇到的困难,认为整体与个人所感知的犯罪与刑罚之间的联系程度(受罚几率)不同,决定了刑罚于个人而言是一风险与收益并存的抽奖式惩罚,受罚几率的大小直接影响到预防目的的实现,并进而对受罚几率作了进一步研究。

On the theme of realizing the purpose of penalty and from the theory of deterrence, this paper takes the purpose of general deterrence as the main analyzing object, and from the characteristics of economic crimes, elaborates the realizing process of the purpose of penalty and the difficulties appearing during this process, holding the opinion that the distinction of relations between crime and penalty that are considered by a unity and an individual decides that penalty, to an individual, is a lottery-like punishment with both risk and benefit. The probability of punishment has direct influence on the realizing of deterrence purpose. This paper takes a further study on the probability of punishment.