法官裁量减轻处罚权适用的困境与完善——以44例上报最高院审核的案件为例

On the dilemma and perfection of the application of the judge's discretion to reduce the penalty power——Taking the 44 cases reported to the supreme court as a case

法官裁量减轻处罚权对于缓解"法有限而情无限"的矛盾,调整"厉而不严"的刑罚结构,实现刑罚的个别化及个案正义具有重要作用。但其适用范围模糊、减轻处罚幅度不明和核准程序繁琐,在实践中陷入了虚置化困境,并存在审判程序时间持久和裁量减轻处罚幅度失范的问题。在当前司法体制下,应明确法官裁量减轻处罚权适用范围和减轻处罚幅度,并适当下放核准权,规范裁量减轻处罚权在实践中的运用,实现其应有的价值。

The judge＇s discretion to reduce the penalty power is to alleviate the contradiction between limited and unlimited law, balance the penalty structure of ＂Strict but not severe＂., which has an important role in achieving the individualization of punishment and case justice. However, due to the unclear scope of application, unclear commutation range and the complex approval procedures, the power in practice falls into the dilemma of virtual. Meanwhile, the long-drawn-out approval procedures and arbitrary commutation range also exist. In the current judicial system, clearer commutation range and scope of application and decentralization of the approval power are necessities. Thus regulate the discretion to reduce the penalty power in the practice and realizing its value is important.