定罪阶段的悔罪问题研究

A Study on the Issue of Repentance in the Stage of Conviction

悔罪一般在量刑和行刑阶段发生作用,悔罪悔的是"已然之罪",所以悔罪是属于罪后情节。而刑法理论一般认为,定罪情节只限于罪中情节,而罪后情节出现在犯罪发生之后,本身脱离了犯罪构成要件,不可能属于定罪情节。所以原则上,罪后情节是作为量刑情节存在的,通过犯罪行为人的罪后行为影响犯罪行为危害及其程度,表现其对自身犯罪的态度,体现其主观恶性的程度,从而影响具体量刑。那么悔罪对于定罪的作用何在,从我国刑法第十三条"但书"条款入手,可以理解为悔罪情节在定罪阶段起到的出罪效果,此外,司法实践中还出现了因考量悔罪表现而酌定不起诉的案例等等,因此,通过对于刑法中悔罪问题在定罪阶段的作用,是影响"预防刑"的重要情节。系统而深入地研究定罪阶段的"悔罪"的刑法意义,是刑法体系完善的必然趋势。构建科学且规范的悔罪机制,并合理地适用于司法实践,是刑罚目的的内在要求。

Repentance usually acts in the stage of sentencing and execution. Repentance is the crime of the already, so repentance belongs to the post-crime plot. The theory of criminal law generally holds that the conviction circumstances are limited to the circumstances of the crime, and the post-crime circumstances appear after the occurrence of the crime, and it itself deviates from the constitutive elements of the crime, which cannot belong to the circumstances of the conviction. Therefore, in principle, the post-crime circumstances exist as the circumstances of sentencing, through the perpetrator＇ s post-crime behavior influencing the harm of criminal behavior and its degree, showing their attitude to their own crime, reflecting their subjective malignant degree so as to affect the specific sentencing. The effect of repentance on the conviction can be seen Startingin the provision clause of Article 13 of the Criminal Law of China and it can be understood as the effect of the circumstances of repentance in the conviction stage. In addition, in judicial practice, there are cases of discretion not to prosecute due to the consideration of repentance performance. Therefore, the role of repentance in the criminal law in the conviction stage is an important circumstance that affects ＂preventive punishment＂ . It is an inexorable trend to study the criminal law meaning of repentance in conviction stage systematically and deeply. It is the inherent requirement of penalty purpose to construct scientific and standardized repentance mechanism and apply it to judicial practice.