量刑原理中的罪刑均衡与犯罪预防关系再论

Further exploration into the relationship between equating crime with punishment and crime prevention in the sentencing principles

在量刑理论研究成果的基础上和量刑规范化改革的背景下,有必要再次探讨罪刑均衡与犯罪预防之间的关系。随着"幅的理论"和"点的理论"逐渐趋向融合,我国的量刑原理只需适当借鉴这两种学说的部分内容,以前者为起点,以后者为终点,来消解罪刑均衡与犯罪预防之间的矛盾。根据并合主义和消极的责任主义,预防犯罪的考虑不能逾越罪刑均衡的限制;除非特别预防的必要性很小,否则不得减轻处罚;当两种预防的需要不一致时,只能结合罪行轻重和具体情节进行慎重判断。以此为契机,为全面实现量刑公正,必须进一步完善《关于常见犯罪的量刑指导意见》。

On the basis of theoretical research on sentencing and in the context of sentencing standardization reform, it is necessary to conduct a further exploration into the relationship between equating crime with punishment and crime prevention. As the theory of content tends to integrate with the theory of point, sentencing principles in China need merely to absorb the proper parts from the two theories with the former as the starting point and the latter as the finishing point so as to resolve contradictions between equating crime with punishment and crime prevention. According to merging doctrine and doctrine of negative responsibility, firstly, the consideration of preventing crime can＇t exceed the restriction of equating crime with punishment; secondly, unless the necessity of special prevention is quite small, the judges can＇t mitigate the punishment; thirdly, as the needs of two preventions are inconsistent, it must execute careful judgment in combination with crime severity and specific circumstances. In order to completely achieve fair sentencing, it is a good opportunity to proceed to improve Sentencing Guideline Proposal.