以谦抑性原则为视角审视连累犯处罚的合理性

The Rationality of Punishment to Relative Criminal on the Base of Austerity Principle

连累犯在我国刑事司法实践中定罪量刑的标准极其不统一,特别是对近亲属的窝藏、包庇行为的处理上。究竟什么连累犯罪行为应该处罚,什么行为达到了刑罚的当罚性要求,最好的考量标准就是刑法的谦抑性原则。当然如何运用刑罚谦抑性原则来衡量和指导刑事司法实践不仅仅是个司法问题,也应是个立法问题。

In consideration of the exceeding disunity with regards to punishment fitting crime standard in our criminal justice practice towards relative criminal,especially to the harbor,shield undertaken by close family,the author has done a series of study and expected to reveal a beneficial revelation as follows : that is what kind of conduct by relative criminal should be punished and what kind of conduct by relative criminal should be held responsible for penalty.In the view of author,the best solution to the problems mentioned above is the austerity principle of criminal law as a measurement standard.Concerning the operation to the austerity principle in judging and guiding the judicial practice,it is not only a judicial problem but also a problem in legislation.This paper penetrates with all these issues.