社会治理“刑罚泛化”现象之反思——基于实证研究的视角

Reflection on the phenomenon of “penalty generalization” in social governance: Based on the perspective of empirical study

当前刑事司法实践频现"刑罚泛化"现象:罪名数目有始无终,一审案件有增无减,罪犯总数有加无已。刑罚泛化强调法网扩张,凸显重刑威慑,是执基公权意愿上的强权威慑,无法得到公众认同,在防范未然、抑制不良反应的频发、减少犯罪率的效果上差强人意。刑法是一种以恶去恶的方式,其严厉性和残酷性决定了其适用必须契合公众意愿,符合大众需求,在产生积极的心理效应的基础上适用。具体而言,刑罚的广度应当坚持不得已原则,在情非得已和别无他法的情况下适用;刑罚的强度应遵循适度性原则,在刑罚刺激大于反应阀限的适度范围内考量;刑罚的信度应秉持必定性原则,在符合前景理论的基础上设定;刑罚的效度,应恪守认同性原则,在契合公众意愿的基础上贯彻。

At present, the phenomenon of penalty generalization is frequently seen in criminal judicial practice, such asthe inconstancy of the number of crimes, cases of first instance unabated, and the increasing number of criminals.Penalty generalization, stressing law expansion, highlighting the heavy penalty deterrent, and insisting on the power ofdeterrent based on the public intention, is therefore unable to be recognized by the public and is barely satisfactory inpreventing and suppressing ill occurrences as well as decreasing the crime rate. The criminal law is a way of seeing eyeto eye, and its severity and cruelty determine that it is applicable and suitable for the public will, is in line with theneeds of the public, and is based on the positive psychological effect. Specifically, the breadth of the penalty shouldinsist on compulsory principle, applied only when people are unwilling but have no other alternative; the strength of thepenalty should follow the moderation principle, which means that penalty should be measured in moderation when it islarger than the stimulus response valve limit; reliability of penalty should uphold the necessity principle, set in line withthe prospect theory; and the validity of penalty should abide by the identity principle, implemented in accordance withthe wishes of the public.