罪刑均衡目的下以刑制罪的思维与限制

Thinking and Restriction of Penalty Influencing Conviction Based on the Balance Between Crime and Penalty

司法实践中过度依赖法条主义,但案件事实定性模糊等情况层出不穷,产生了案件审判结果罪刑不均衡的现实问题,因而有必要讨论以刑制罪思维的适用可行性。当判决刑罚与社会危害性不相匹配的情况发生时,借助以刑制罪的思维方式,通过实质解释,实现罪刑均衡的目的。以刑制罪思维所涉及的司法权僭越立法权、违反罪刑法定原则以及民意影响司法独立性等顾虑,可通过在罪刑法定原则下对以刑制罪的适用范围加以限制,要将其限制在疑难案件中,在案件审理中要融入价值判断,适用要坚持罪刑法定。

In judicial practice,there is excessive reliance on legalism,but the nature of the case facts is ambiguous,which leads to the realistic problem that crime and penalty are not balanced in the trial result.Therefore,it is necessary to discuss the feasibility of penal-ty infuencing conviction,with the help of the thought of penalty influencing conviction and substantive interpretation to achieve the balance between crime and penalty.The judicial power involved in the thinking of penalty influencing conviction has such concerns as arrogation of legislative power,violation of the principle of legality of crime and the influence of public opinion on judicial independence,so the scope of the application of penalty influencing conviction can be limited to difficult cases under the principle of legality of crime.Value judgement should be incorporated in the trial of cases and the application should adhere to the legality of crime and penalty.