缓刑裁量模式实证研究——基于4238份危险驾驶罪裁判文书的实践检视

An Empirical Study on Probation Sentencing Modes--A Practical Review of 4,238 Verdicts in Criminal Cases of DangerousDriving

人们对缓刑实质条件的判断存在较大争议,可以概括为并列模式与递进模式的对立。为了验证司法实践中法官采取何种模式,收集4238份醉酒型危险驾驶罪判决书作为研究样本,进行理论假设与模型建构。结果发现,缓刑裁量更多被责任刑情节所影响,表明法官更倾向于并列模式。并列模式不符合缓刑的基本法理与当代中国的刑事司法政策,无法体现缓刑的预防刑属性,会导致责任主义的重复评价,忽略再犯罪危险评估在缓刑裁量中的核心地位,以及造成缓刑适用的不合理限缩等问题。递进模式的二元裁量机制为扩大缓刑适用提供了条件,应该确立微罪缓刑的普遍适用模式,建构以再犯罪危险评估为中心的缓刑裁量模式,使缓刑裁量机制得以优化。

In recent years,despite the expansion of minor crimes,the rate of the application of probation remains low and the improvement of sentencing mode is a technical solution to this problem.After the amendment to the substantive conditions of probation,there is a major controversy over the judgment criteria of the substantive conditions of probation,which can be summarized as a parallel pattern and a progressive pattern.The proponents of the parallel pattern believe that the four substantive conditions of probation are in an additive relationship,while the proponents of the progressive pattern believe that a minor circumstance of crime and a guilty plea are the prerequisites for the determination of no risk of reoffending.The substantive difference between the two patterns lies in their different understandings of the legitimacy of probation.To find out which mode judges adopt in judicial practice,4,238 verdicts on the crime of drunk driving were collected as research samples.A theoretical hypothesis was proposed:if the decision on whether to apply probation is based on both moral and preventive factors,it indicates that judges tend to favor the parallel pattern;if the decision is based solely on preventive factors,it indicates that judges tend to favor the progressive pattern.The results of the model analysis show that the sentencing of probation is more influenced by moral factors,indicating that judges tend to favor the parallel pattern.However,the parallel pattern does not conform to the basic legal principles and criminal justice policies of contemporary China.First,the parallel pattern makes it difficult for probation sentencing to embody the fundamental attributes of probation.Probation sentencing is essentially a preventive sentencing measure.Second,the parallel pattern may lead to repetitive evaluations of moral factors in probation sentencing.If the moral factors play a decisive role in deciding whether to apply probation after the main sentence is determined,it may violate the principle of prohibition of repetitive evaluations.Third,the parallel pattern ignores the core position of reoffending risk assessment in probation sentencing.Fourth,the parallel pattern makes the conditions more stringent for and leads to unreasonable restrictions on the application of probation.Therefore,to optimize the probation sentencing mode,we should:first,adhere to the progressive pattern of the binary sentencing mechanism,which not only embodies the basic attributes of probation but also provides technical solutions for expanding the application of probation;second,establish a universal application mode for minor crimes and prioritize the application of probation;and,third,design a probation reoffending risk assessment tool,improve the procedure for assessing probation reoffending risk,and build a probation sentencing mode centered on reoffending risk assessment.