论认罪认罚从宽的报应刑根据——化解从宽与罪责刑相适应原则的张力

On the Retributive Ground for Giving Leniency for Pleading Guilty and Accepting Punishment:Resolving the Conflicts Between Leniency and the Principle of Suiting Punishment to Crime and Responsibility

罪责刑相适应原则要求量刑时要尊重报应刑相对于预防刑的主导地位。主流观点认为认罪认罚从宽的主要根据在于预防,这与罪责刑相适应原则形成张力。对从宽根据的预防式理解仅允许较为轻微的从宽,无法为当下全面深入的制度改革提供正当性基础。将仁慈与社会和解等新因素引入从宽根据同样无法化解从宽与罪责刑相适应原则之间的冲突。将认罪认罚定位为报应刑层面的从宽情节能够支持较大的从宽幅度,但这将冲击经典报应理念。一种不同于行为报应主义和品格报应主义的生活报应主义能够在尊重现实制度和报应理念的基础上将罪犯的真诚悔罪纳入报应刑的量刑情节,化解从宽与罪责刑相适应原则的张力。这既实现了对实在法的最佳解释,又能为须认之"罪"的内涵和从宽限度等实践问题提供指引。

Many people believe that there is an apparent tension between the system of giving leniency for pleading guilty and accepting punishment(GLPGAP)and the principle of suiting punishment to crime and responsibility,because they insist that the major aim of criminal punishment is retribution,on the one hand,and that the main ground for the system of GLPGAP is prevention,on the other hand.The preventive justification for GLPGAP cannot provide a fully legitimate basis for the comprehensive and in-depth reform of the criminal system at the present time.In addition,new elements such as mercy and social reconciliation also fail to resolve the conflict.Positioning GLPGAP as a mitigation factor at the level of retribution can support larger leniency,but this would impact the classic notion of retribution.The life retributivism that is different from behavior retributivism and character retributivism can incorporate the sincere repentance of the offender into the mitigation factor of the retribution,which offers the best interpretation of the positive law and can also provide guidance for practical issues such as the meaning of“pleading crime”and the limits of leniency.