刑事被害人谅解作为量刑情节研究

发布时间：2018-02-17 05:31

本文关键词： 刑事被害人谅解刑罚根据量刑情节　出处：《山东大学》2014年硕士论文　论文类型：学位论文

【摘要】：最高人民法院的相关规定一再以非正式法源的形式肯定刑事被害人谅解对量刑的影响,新《刑事诉讼法》中将被害人谅解作为可以影响当事人和解的公诉案件的因素,这意味着“谅解”作为量刑情节有了正式法源的肯定。司法实践中也早已将“谅解”作为量刑情节予以适用,谅解作为量刑情节的案件性质已经不局限于故意伤害、交通肇事这种比较轻微的刑事犯罪,而是扩展到强奸、故意杀人、以危险方法危害公共安全这些社会危害性大的严重犯罪案件,虽然个别案件中出现了因受害方提出高价赔偿为条件,双方没能够形成谅解反而加深矛盾的情况,但我们不能无视谅解作为量刑情节已经处于越来越广泛的地位。理论界对谅解作为量刑情节,由于学者以不同的刑罚根据理论,因此出现了两种不同的声音。如以恢复性司法模式和理念为支撑,通常认为刑事被害人谅解作为量刑情节符合恢复性司法的理念；如以传统刑罚根据理念为支撑,则认为刑事被害人谅解不应作为量刑情节。实践当中的困惑和理论界的争议的根本在于,刑事被害人谅解何以能够影响量刑、谅解如何影响量刑以及谅解影响刑罚如何实现量刑均衡等一系列问题依然存在,没有得到解决。谅解作为量刑情节适用,要依据谅解作为量刑情节的根据和联结点、谅解作为量刑情节的依存条件以及谅解作为量刑情节度的把握,做到在个案中具体分析,不谅解不能在基准刑之上增加刑罚,以体现刑罚公正。
[Abstract]:The relevant provisions of the Supreme people's Court have repeatedly affirmed, in the form of informal legal sources, the impact of the understanding of criminal victims on sentencing. The new "Criminal procedure Law" regards victim understanding as a factor in public prosecution cases that can affect the reconciliation of the parties. This means that the "understanding" as the circumstances of sentencing has been confirmed as a formal source of law. In judicial practice, the "understanding" has already been applied as the circumstances of sentencing, and the nature of the case of "understanding" as the circumstances of sentencing has not been limited to intentional injury. Traffic accidents are relatively minor criminal offences, but they extend to serious social crimes such as rape, intentional homicide, and endangering public safety by dangerous means. Although in individual cases there has been a situation in which the injured party offered high compensation as a condition, the two sides did not reach an understanding and instead deepened the conflict. But we can't ignore the understanding as the circumstances of sentencing has been in a more and more extensive position. The theory of understanding as the circumstances of sentencing, because scholars use different penalties based on the theory, Therefore, there are two different voices. For example, supported by restorative justice models and concepts, it is generally considered that the understanding of criminal victims as the circumstances of sentencing conforms to the concept of restorative justice; for example, the traditional penalty based on the concept of support, It is considered that the understanding of criminal victim should not be taken as the circumstances of sentencing. The root of the confusion in practice and the controversy in the theoretical circle is that there are still a series of problems, such as how the understanding of criminal victims can influence sentencing, how understanding affects sentencing and how to achieve the balance of sentencing, etc. As the circumstances of sentencing, the understanding should be the basis and joint of the circumstances of sentencing, the understanding as the dependent condition of sentencing circumstances and the understanding as the grasp of the degree of sentencing circumstances, so as to make a specific analysis in the case. No understanding can be added to the standard penalty to reflect the justice of the penalty.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.13;D925.2

【参考文献】