刑罚目的二律背反问题新论——以盗窃罪、敲诈勒索罪为分析视角

Antinomy of Penalty Purposes—From Perspectives of Crimes of Theft and Extortion

盗窃罪和敲诈勒索罪同属侵犯财产型犯罪。盗窃是一种以平和的手段非法占有他人财物的行为,敲诈勒索行为则带有强烈的人身威胁性,比较而言,敲诈勒索罪的责任刑应该重于盗窃罪的责任刑,但是,刑法却在两罪涉案数额特别巨大或者有其它特别严重情节时,为盗窃罪配备了更重的法定刑。从法定刑到宣告刑、执行刑,既要考虑报应的正当性,又要考虑特殊预防的必要性,这是一个动态选择的过程,不能突破罪刑法定的边界。但是,在司法实践中,裁判量刑却绕不开刑罚目的二律背反的现实。"有利于犯罪人"原则可以提供一个解决问题的视角。

Both the crimes of theft and extortion are under the crime of property violation, the former illegally possessing the properties of other people by gentle means while the latter strongly threatening the safety of the victims. Comparatively speaking, the crime of extortion should be given more serious criminal sanctions than those of theft. However, in the Criminal Laws in China, the legal penalty for theft is more serious when a huge amount or one of especially serious nature is involved. As for legal penalty, declared sentence and executed punishment, both the justification of judgment and the necessity of special prevention should be considered. This is a dynamic process of choice making, and the legal boundaries of crime punishment should not be broken. However, in the judicial practice, the measurement of penalty is closely tied with the antinomy of penalty purposes. The principle of ＂being benefiting the offender＂ may provide a new view to solving this problem.