量刑机制的分层量化实证研究——以防卫过当案件为例

Empirical Research on Layered Quantization of Sentencing Mechanism——Taking Cases of Excessive Defense as Examples

分层量化的量刑机制构建对于保证量刑公平具有重要价值。实质的量刑基准是分层量化的根本前提,是责任刑层次优于预防刑层次的量刑根据。量刑起点实质为与基本犯罪构成事实相对应的基准刑,其他影响犯罪构成的犯罪事实为依据的基准刑实质为第二层次的基准刑。责任刑与预防刑的明确界分是分层量化的外在根据。分层量化的实体在于量刑要素的规范化整合。对五类伤害结果的裸刑均值进行方差检验,证明裸刑均值可作为量刑起点。对以伤害结果与防卫过当为自变量、刑量为因变量的回归模型进行回归分析,可以发现防卫过当作为第二层次量刑基准对量刑起点的调整幅度至少在65%以上。司法实践中防卫过当分层量化的量刑机制存在着非理性因素,只有注重对分层量化的原理与经验的双重建构,才能在真正意义上建构起标准化的量刑机制。

The sentencing mechanism with layered quantization enjoys important value in ensuring the sentencing fairness. The substantive sentencing benchmark is the fundamental premise of layered quantization, and the sentencing basis that the layer of punishment for culpability prevails over punishment for prevention. The starting point of sentencing is virtually benchmark punishment corresponding to basic fact satisfying the Tatbestand, and the benchmark punishment based on other criminal facts influencing the Tatbestand is virtually one of the second layer. The clear distinction between punishment for culpability and punishment for prevention is the external foundation for layered quantization. The substance of layered quantization lies in the normative integration of sentencing elements. It is proved through variance test on the average of basic punishments of five types of injury consequences that the average of basic punishments can be used as the starting point of sentencing. It is found through a regression analysis of the regression model taking the injury consequence and excessive defense as independent variables and the amount of punishment as dependant variable that the excessive defense as the second-layer sentencing benchmark can result in the adjustment of starting point of sentencing at the degree of at least more than 65%. There are irrational factors in the sentencing mechanism of layered quantization on excessive defense in judicial practice, thus if only focus is made on the dual construction of principle and experience of layered quantization, can a standardized sentencing mechanism be really established.