我国刑事判决书量刑说理问题研究
发布时间：2018-07-15 10:49
【摘要】： 有数据显示,2003-2007年之间全国法院宣告无罪判决比例不到0.5%,可以说中国刑事审判的核心问题应当是量刑问题。但是在我国目前刑事诉讼程序中,定罪量刑严重失衡——重定罪轻量刑,诉讼程序中的定罪量刑失衡反映在刑事裁判书中,便是量刑说理不足。近几年司法实务中出现了大量社会反响重大,量刑结论争议极大的刑事案件。这些案件的一个共同点是,公众在判决书中难以发现法官对其如何认定量刑情节和为何作此判决的解释,判决书中武断的量刑结论难以使各判决书受众信服,司法的权威也因此备受质疑。本文通过对量刑说理缺陷的梳理,拟提出一系列促进量刑说理的近期对策和远期长效制度设想,以期为完善量刑说理提供一些可供选择的思路。 本文正文约三万字,全文共分五个部分,下面简单概括一下这五个部分的内容。 第一部分概述量刑说理,包括量刑说理的基本概念、量刑说理的要素、量刑说理的应达标准。量刑说理的概念有广义和狭义之分,本文主要是针对狭义概念展开论述。狭义的量刑说理是指为了证明量刑判决的正当性,量刑说理主体在判决书中就被告人的量刑问题,依据法律文本和原则、法理和情理对控辩双方的量刑意见、量刑事实认定以及法律适用等问题进行必要解释的行为。量刑说理包括四大要素:量刑说理内容、主体、路径和载体,这是笔者进行分析问题和解决问题的切入点。量刑说理应达合法性、合理性和客观性的标准,这也是完善量刑说理制度的宏观指标。 第二部分提出量刑说理的现存问题。先是通过一些实证数据对量刑说理存在的问题进行简单说明,其次再细致地分析了目前我国刑事判决书量刑存在的一系列问题,归纳而言表现在以下几个方面:重定罪说理,轻量刑说理;重主刑、实刑说理,轻附加刑、缓刑说理;重法定情节说理,轻酌定情节说理;重罪名选择理由,轻法定刑幅度选择理由;重事实列举,轻证据分析;重控方意见说理,轻辩方意见评析;重格式化说理,轻个性化论证。 第三部分分析了量刑说理存在问题的原因。定罪中心主义的庭审模式、审判权力行政化运行方式、相关职业教育缺失和判决书结构“八股”式是导致量刑说理难的深层次制度因素。我国传统诉讼文化中的司法行政化和个人权利概念缺失是导致量刑说理缺乏观念支撑的历史文化因素。此外,在司法实务中法官工作量过大、法官自身素质不高等也是导致量刑理由缺乏说服力的现实原因。 第四部分强调了量刑说理的重要性。量刑说理的作用主要体现在以下几个方面:确保量刑准确,贯彻罪行相适应原则;有利于实现量刑公开,增强裁判公信力;便于控辩双方寻求救济和二审法院审查;便于统一法律司法解释,推动个案司法解释技术的发展。 第五部分提出了构建量刑说理制度的对策。文章通过对目前有关于量刑说理方面改革环境的考察,分析了建立量刑说理制度的有利外部司法改革环境,同时也分析了我国刑事诉讼制度中将长存的不利因素,辩证地提出了渐进的改革模式,即分两步走策略。短期对策主要是针对判决书本身的技术改良,包括优化判决书结构、丰富内容、深化分析论证、公开量刑理由。从远期来看,要建立健全相关制度,包括优化相对独立的量刑程序、构建量刑证据制度、完善量刑指导制度和审判权运作去行政化这四个方面的内容。
[Abstract]:Data show that the proportion of the national court of innocence between 2003-2007 years is less than 0.5%. It can be said that the core issue of the criminal trial in China should be the question of sentencing. However, in the current criminal procedure of China, the serious imbalances in conviction and sentencing are seriously imbalanced, and the imbalances in conviction and sentencing in the sequence of litigation are reflected in the criminal judgment. In recent years, there have been a large number of criminal cases with great social repercussions and great controversies on sentencing conclusions. One common point in these cases is that it is difficult for the public to find out how the judge determines the circumstances of sentencing and the explanation for the decision in the judgment, and the arbitrary conclusion of sentencing is difficult in the judgment. In order to convince the audience of the judgment books, the authority of the judiciary has also been questioned. By combing the defects of sentencing reasoning, this paper proposes a series of short-term countermeasures and long-term long-term system ideas to promote sentencing, in order to provide some options for perfecting the sentencing reasoning.
The text is about thirty thousand words. The full text is divided into five parts. The following five parts are briefly summarized.
The first part outlines the concept of sentencing, including the basic concept of sentencing reasoning, the elements of sentencing reasoning, and the standard of sentencing reasoning. The concept of sentencing reasoning is divided into a broad and narrow sense. This article mainly deals with the narrow sense. The narrow sense of sentencing refers to the justification of the sentencing judgment, the subject of sentencing reasoning in the judgment. In the book, the question of the sentencing of the defendant, according to the text and principle of the law, the legal principle and the reason, the punishment of the two parties' sentencing opinions, the sentencing fact identification and the application of the law. The sentence of sentencing includes four main elements: the content of sentencing reasoning, the subject, the path and the carrier, this is the author's analysis and solving the problem Sentencing reasoning should reach the criteria of legality, rationality and objectivity. This is also a macroscopic index for improving sentencing reasoning system.
The second part puts forward the existing problems of sentencing reasoning. First, it gives a simple explanation of the existing problems of sentencing reasoning through some empirical data. Secondly, it analyzes a series of problems existing in the criminal sentencing of our country at present, and summarizes the following aspects in the following aspects: the principle of conviction, the light of punishment, the main punishment, and the real punishment. Reasoning, attaching to punishment, probation, rationalization of legal circumstances, light discretion of the plot, reason for the choice of the name of a serious crime, the reason for the choice of the extent of the legal punishment, the fact that the facts are enumerated, the light evidence analysis, the criticism of the accuser, the comment and analysis of the light defense, the reformatting and the light sexual demonstration.
The third part analyzes the reasons for the existence of the sentencing principle. The court trial mode of the conviction centralism, the administrative operation mode of the trial power, the lack of related vocational education and the "eight shares" of the sentence structure are the deep institutional factors that lead to the difficulty of sentencing. Loss is a historical and cultural factor that leads to the lack of concept of sentencing reasoning. In addition, in the judicial practice, the judge's workload is too large and the judge's own quality is also the cause of the lack of persuasiveness of the reason for sentencing.
The fourth part emphasizes the importance of sentencing reasoning. The role of sentencing reasoning is mainly embodied in the following aspects: to ensure the accuracy of the sentencing and to carry out the principles of the adaptation of crimes; to achieve public sentencing and to enhance the credibility of the referees; to facilitate the two sides to seek relief and the review of the court of the second instance; to facilitate the unification of legal judicial interpretation and to promote case judicature Explain the development of technology.
The fifth part puts forward the Countermeasures for the construction of the system of sentencing reasoning. Through the investigation of the reform environment in the aspect of sentencing reasoning, the article analyzes the favorable external judicial reform environment for establishing the system of sentencing reasoning, and analyses the disadvantages of the long existence in the criminal procedure system in China, and dialectically puts forward the progressive reform model. The short term countermeasures mainly aim at the technical improvement of the verdict itself, including optimizing the structure of the judgment book, enriching the content, deepening the analysis and demonstration, and the public sentencing reasons. In the long term, we should establish and improve the relevant system, including the optimization of relatively independent sentencing procedures, the construction of the sentencing evidence system, and the improvement of the sentencing guidance system and the improvement of the sentencing guidance system. The four aspects of the operation of jurisdiction are to be administrative.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2
本文编号：2123816
[Abstract]:Data show that the proportion of the national court of innocence between 2003-2007 years is less than 0.5%. It can be said that the core issue of the criminal trial in China should be the question of sentencing. However, in the current criminal procedure of China, the serious imbalances in conviction and sentencing are seriously imbalanced, and the imbalances in conviction and sentencing in the sequence of litigation are reflected in the criminal judgment. In recent years, there have been a large number of criminal cases with great social repercussions and great controversies on sentencing conclusions. One common point in these cases is that it is difficult for the public to find out how the judge determines the circumstances of sentencing and the explanation for the decision in the judgment, and the arbitrary conclusion of sentencing is difficult in the judgment. In order to convince the audience of the judgment books, the authority of the judiciary has also been questioned. By combing the defects of sentencing reasoning, this paper proposes a series of short-term countermeasures and long-term long-term system ideas to promote sentencing, in order to provide some options for perfecting the sentencing reasoning.
The text is about thirty thousand words. The full text is divided into five parts. The following five parts are briefly summarized.
The first part outlines the concept of sentencing, including the basic concept of sentencing reasoning, the elements of sentencing reasoning, and the standard of sentencing reasoning. The concept of sentencing reasoning is divided into a broad and narrow sense. This article mainly deals with the narrow sense. The narrow sense of sentencing refers to the justification of the sentencing judgment, the subject of sentencing reasoning in the judgment. In the book, the question of the sentencing of the defendant, according to the text and principle of the law, the legal principle and the reason, the punishment of the two parties' sentencing opinions, the sentencing fact identification and the application of the law. The sentence of sentencing includes four main elements: the content of sentencing reasoning, the subject, the path and the carrier, this is the author's analysis and solving the problem Sentencing reasoning should reach the criteria of legality, rationality and objectivity. This is also a macroscopic index for improving sentencing reasoning system.
The second part puts forward the existing problems of sentencing reasoning. First, it gives a simple explanation of the existing problems of sentencing reasoning through some empirical data. Secondly, it analyzes a series of problems existing in the criminal sentencing of our country at present, and summarizes the following aspects in the following aspects: the principle of conviction, the light of punishment, the main punishment, and the real punishment. Reasoning, attaching to punishment, probation, rationalization of legal circumstances, light discretion of the plot, reason for the choice of the name of a serious crime, the reason for the choice of the extent of the legal punishment, the fact that the facts are enumerated, the light evidence analysis, the criticism of the accuser, the comment and analysis of the light defense, the reformatting and the light sexual demonstration.
The third part analyzes the reasons for the existence of the sentencing principle. The court trial mode of the conviction centralism, the administrative operation mode of the trial power, the lack of related vocational education and the "eight shares" of the sentence structure are the deep institutional factors that lead to the difficulty of sentencing. Loss is a historical and cultural factor that leads to the lack of concept of sentencing reasoning. In addition, in the judicial practice, the judge's workload is too large and the judge's own quality is also the cause of the lack of persuasiveness of the reason for sentencing.
The fourth part emphasizes the importance of sentencing reasoning. The role of sentencing reasoning is mainly embodied in the following aspects: to ensure the accuracy of the sentencing and to carry out the principles of the adaptation of crimes; to achieve public sentencing and to enhance the credibility of the referees; to facilitate the two sides to seek relief and the review of the court of the second instance; to facilitate the unification of legal judicial interpretation and to promote case judicature Explain the development of technology.
The fifth part puts forward the Countermeasures for the construction of the system of sentencing reasoning. Through the investigation of the reform environment in the aspect of sentencing reasoning, the article analyzes the favorable external judicial reform environment for establishing the system of sentencing reasoning, and analyses the disadvantages of the long existence in the criminal procedure system in China, and dialectically puts forward the progressive reform model. The short term countermeasures mainly aim at the technical improvement of the verdict itself, including optimizing the structure of the judgment book, enriching the content, deepening the analysis and demonstration, and the public sentencing reasons. In the long term, we should establish and improve the relevant system, including the optimization of relatively independent sentencing procedures, the construction of the sentencing evidence system, and the improvement of the sentencing guidance system and the improvement of the sentencing guidance system. The four aspects of the operation of jurisdiction are to be administrative.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2
【引证文献】
相关硕士学位论文 前1条
1 马浩洁;论法官量刑自由裁量权的程序规制[D];辽宁大学;2011年
，本文编号：2123816
本文链接：https://www.wllwen.com/falvlunwen/susongfa/2123816.html
