量刑均衡的中国经验:基于强奸罪的实证研究

The Chinese Experience in Balanced Sentencing:An Empirical Study Based on the Crime of Rape

量刑规范化运动距今已逾10年,但鲜有实证研究客观评估其实施效果。借助于8个省份的1254份裁判样本,本研究利用多种统计模型交替比较后发现,缓刑和刑期在各省份间较为均衡,个别省份间差异可由量刑细则和犯罪事实解读。河南的缓刑率较其他省份低,因其缓刑指导意见及高比例既遂和多次强奸等事实问题造成;广东的刑期较短,与其量刑细则对未遂犯的基准刑减刑幅度有关;新疆比四川刑期短,原因在于初犯比例是后者的5倍。从统一的法政体系、量刑指导意见、犯罪事实角度,可以充分探索出量刑均衡的中国法律和司法管理经验。最高人民法院可进一步细化适用于全国的量刑指导意见,制定缓刑裁判规范,明晰量刑情节的认定标准;刑法可将持有凶器、恋爱关系、亲属相奸、老残孕等作为法定从重从轻情节。

It has been over a decade since the movement to standardize sentencing was launched,but there are few empirical studies that objectively evaluate its implementation effects.After alternate comparisons among the 1,254 samples of judgements in eight provinces by using a variety of statistical models,this study found that the probation and the serving of sentenced terms are evenly distributed among different provinces,and the differences between individual provinces can be interpreted by the sentencing regulations and criminal facts.The probation rate in Henan Province is lower than that in other provinces,due to its probation guidelines and the high proportion of completed and repeated rapes.Guangdong’s sentenced terms are shorter,which is related to the standard sentence reduction for cattempted offenders stipulated in its sentencing rules;Xinjiang’s sentenced terms are shorter than Sichuan’s,and the reason for the shorter terms is that the ratio of first offenses in Xinjiang is five times that of Sichuan.From the perspectives of a unified legal system,sentencing guidelines,and criminal facts,it is possible to fully explore Chinese law and judicial management experience in balanced sentencing.The Supreme Court can further refine the sentencing guidelines applicable to the whole country,formulate probation judgment standards,and clarify the criteria for determining the sentencing circumstances.The criminal law may take the following factors into judicial discretion when it comes to sentencing:whether the offender possesses a murder weapon;whether there is a romantic relationship between the rapist and the victim;whether the rapist is a relative of the victim;and whether the victim is in pregnancy,old age or disabled.