刑事司法中的犯罪数额概括化认定研究

Study on Generalized Determination of the Amount of Crime in Criminal Justice

出于节约司法成本、解决证明困难、提高诉讼效率的目的,我国刑事司法实践中存在着较多犯罪数额概括化认定的情形,并普遍形成对行为人不利的犯罪数额认定倾向。此种犯罪数额概括化处理的实践做法所存在的主要问题表现为:与刑事认定的准确性相抵牾、体现出刑事政策在事实认定中的不当应用、概括化认定数额与确证数额在量刑上未予合理区分。犯罪数额概括化认定具有存在的合理性基础,但对其在实践中的运用应确立一定的限制性规则,即计量对象海量化原则、允许反证原则、从轻处罚原则等,以切实兼顾刑法的秩序维护和人权保障价值,实现效率与公正的相对平衡。

In order to save the judicial cost, solve the difficulty of proof and improve the efficiency of litigation, there are many circumstances in Chinese criminal judicial practice in which the amount of crime is determined in a generalized way and the tendency of determining the amount of crime unfavorably to the offender is formed. The main problems that exist in generalized determination of the amount of crime are as follows： Generalized determination of the amount of crime is in contradiction with the accuracy of criminal determination, shows the inappropriate application of criminal policy in determination of facts and the lack of rational distinction between sentences based on the generalized determination of the amount and the actually-confirmed amount. Generalized determination of the amount of crime has a reasonable basis for its existence,but it is necessary to establish some appropriate restrictive rules in the practical application such as the principle of mass subjects measured, the principle of allowing rebuttal and the principle of lessened sentence in order to earnestly consider both the order maintenance and human rights protection value of criminal law and realize comparative balance between efficiency and justice.