程序违法何以实体从宽

How Procedural Violation Gets Sentence Reduction

"程序违法的实体从宽"现象已在我国初见端倪,然而其正当性备受质疑。在刑事实体法上,沟通报应理论与规范预防理论均可以解释实体从宽的体系正当性,并且后一论证思路更为可取。在刑事程序法上,替代刑罚说、修正的沟通报应理论、修复程序公正说均可以解释实体从宽的目的正当性,并为其合理适用提供限制方案。各个学说均存在一定不足,相形之下,量刑补偿理论是更为妥当的主张。这一理论认为,实体从宽是一种以补偿为中心的程序违法救济方式,是国家侵权责任的体现,并以矫正正义为法理基础。基于量刑补偿理论,程序违法的实体从宽应当坚持完全补偿原则、最后手段原则,并根据程序后果的不同补偿效果而对三种程序违法类型是否启动实体从宽进行补偿必要性审查。

The phenomenon of "sentence reduction for procedural violation" has first appeared in China, but its legitimacy has been questioned. At the level of substantive criminal law, both the theory of communicative retribution and the theory of normative prevention can explain the system legitimacy, and the latter is even more desirable. At the level of criminal procedure law, the pain theory, the modified communicative retribution theory, and the procedural fairness restoration theory can all be applied to explain the legitimacy of the purpose of sentence reduction and provide restrictions for its reasonable application. However, each theory has certain flaws and shortcomings. In contrast, the sentence compensation theory is a more appropriate proposition. This theory argues that sentence reduction is a compensation-centered remedy for procedural violations, and it is an expression of state tort liability that based on the corrective justice. Based on the theory of sentence compensation, sentence reduction for procedural violations should adhere to the principle of full compensation, the principle of last resort, and examine the necessity of compensation whether to initiate sentence reduction for the three types of procedural violations according to the different compensation effects of the procedural consequences.