累犯认定:现实问题、路径选择与技术规制

Recidivism Cognizance: Realistic Problems, Path Choice and Technical Regulation

我国累犯适用存在的主要问题是裁量情节适用不确定、裁量基准随意以及裁量过程无章可循,其根源在于如何裁量认定累犯后罪刑罚。累犯后罪刑罚应为责任刑,应以责任刑情节为裁量依据。累犯后罪刑罚的责任刑情节包括不法情节与责任情节。责任刑情节的裁量规则包括排除无责任事由规则、排除非行为事由规则和排除犯罪构成基本情节规则。裁量确定累犯后罪刑罚时,应先确定基准刑,再根据责任刑情节调节基准刑。基准刑原则上不能高于中间刑。多情节并存时,原则上采取同向相加、逆向相减的方法调节基准刑;如果存在加重或减轻情节,应遵循先评价从重、加重情节,再评价从轻、减轻情节的次序。

The main problems existing in the application of recidivism in China conclude the discretion of the plot being uncertain,the discretion standard being optional and no chapter to follow for the discretion process,and the root of which lies in how to determine the penalty of the latter offense of recidivism.The penalty of the latter offense of recidivism should be responsibility punishment,and shall be based on responsibility circumstances of crime.The circumstances of responsibility punishment for the penalty of the latter of fense of recidivism include the plot of illegality and the circumstances of responsibility.The discretionary rules of the circumstances of responsibility punishment include rule of excluding irresponsibility reason,rule of excluding non-behavior reason and rule of eliminating the basic plot of constitution of crime.Determining the penalty of the latter offense of recidivism,the standard punishment shall be determined first,and then the standard punishment shall be adjusted according to the circumstances of the responsibility.The standard punishment cannot be higher than intermediate punishment in principle.If multiple circumstances coexist,it should adopt standard punishment in principle with additive addition and backward addition;if there are aggravating or mitigating circumstances,it should follow the following order by evaluation:circumstance of heavier punishment,aggravating circumstances,light circumstances and mitigating circumstances.