量刑原理参照下附条件不起诉的适用——从其与相对不起诉的关系出发

The Application of Non-prosecution with Additional Conditions Referring to the Sentencing Principles——Starting from Its Relationship with Relative Non-prosecution

附条件不起诉制度体现了我国对未成年人特殊保护的司法理念,体现了起诉便宜主义的要求。适用时应以量刑原理为参照,分为两个步骤判断:第一个步骤,根据责任刑和预防刑量刑情节判断是否属于"可能判处一年有期徒刑以下刑罚";第二个步骤,判断是否具有"悔罪表现"。附条件不起诉与相对不起诉的区分主要表现在第一步骤刑罚的轻重不同,第二步骤考量的因素不同,两者发生竞合时,如属于三类特定的案件,应遵循"相对不起诉→附条件不起诉"的顺序适用。

Non-prosecution with additional conditions system reflects the judicial philosophy of minorg special protection and the doctrine of prosecution requirements in China. It should be applied with the sentencing principle as the reference, which includes two steps ： the first step is to judge whether it belongs to the prevention of the type ＂may be sentenced to less than one year of imprisonment＂ according to the criminal responsibility and the senten- cing. Then, it is needed to judge whether the criminal shows ＂repentance＂. The distinction between non - prose- cution with additional conditions and relative non - prosecution is the severity of the penalty in the first step, and the factors to be considered in the second step. When the both get concurrent, if it belongs to the three specific ca- ses, we should apply relative non -prosecution first and non -prosecution with additional condition as the second.