刑事裁判文书量刑说理问题研究
发布时间：2018-10-15 18:16
【摘要】：刑事裁判文书量刑说理是法官对其作出的量刑结论说明理由,并将量刑理由反映到裁判文书中。由于法律规范的概括性,具体到每个案件如何裁判便取决于法官的自由裁量,法官可以在法定量刑幅度内任意选取其中一个量刑点。裁判文书量刑说理制度可以在一定程度上限制法官自由裁量权,要求法官对其作出的量刑结论充分说明理由,在此过程中对自己的判断不断进行反思和审查,最终得出客观合理的解释。随着裁判文书上网工作的推进,裁判文书的受众已经从简单的个体扩大到社会公众。一份逻辑严密、说理充分的裁判文书可以让公众看到法官思维的过程及其心证的过程,使整个量刑程序透明化,减少公众疑虑,进一步增强裁判文书可接受性,树立司法公信力,以此来保障程序公正。我国在裁判文书量刑说理方面较为薄弱,其表现在以下几个方面。第一,量刑观念失衡,在裁判文书制作上,着重对定罪进行说理,忽视量刑说理。第二,我国裁判文书量刑说理格式化现象严重,不仅在文书结构上严格遵循"首部、事实部分、理由部分、判决结果部分和尾部",未对定罪和量刑进行严格区分,未就具体量刑情节进行说明,仅仅对量刑证据简单罗列,而且说理不具针对性,许多判决书对量刑情节的描述都如出一辙。第三,量刑说理不充分,关键地方含糊其辞,寥寥数笔带过。第四,我国量刑说理普遍缺少严密的法律推理。固有的"三段论"推理模式使裁判文书缺少推理空间,整篇裁判文书仿佛是零散的几句说理堆砌而成。第五,我国裁判文书量刑说理过于忽视辩方意见,对辩方意见不论采纳与否都不予说明,在制作裁判文书的时候能简则简。归根到底,我国裁判文书量刑说理不足要归咎于以下几点原因:首先,"案多人少"的司法环境以及"重定罪轻量刑"的传统观念使法官不愿说理;其次,受到内部上级领导及政法委的干预以及大众舆论的监督,法官为了避免"言多必失"不敢说理;最后,我国当前的法官选任要求不算高,专业水平低的法官受限于自身理论功底,表达能力不强,语言文字功底差,没有能力做到说理透彻。因此,要迫切完善刑事裁判文书中的量刑说理。完善量刑说理首先要完善制度规范。第一,立法明确量刑说理,可以借鉴域外经验将量刑说理上升到法律层面强制法官说理。第二,增加量刑答辩程序,在审前将公诉机关的量刑建议书传达给辩方,控辩双方在庭审的时候可以针对量刑进行法庭调查和辩论,以此给法官提供思路,综合得出让控辩双方都接受的量刑结论。第三,建立量刑说理激励机制,以看得见的利益去刺激法官说理。第四,建立裁判文书言论免责制度,让法官可以放下顾虑去说理。第五,推进裁判文书上网公开,将裁判文书置于大众监督之下,倒逼法官对量刑结论作出充分说理。其次,明确量刑说理的要素。在量刑说理的时候第一要秉持合法性、合理性、逻辑性、充分性的原则,一份合法、合理,逻辑严密、充分的量刑说理会使裁判文书显得更加专业。第二,在确立量刑原则的基础上从根本上解决量刑说理,即量刑说理的内容。一份有效的量刑说理应当包括对量刑依据、量刑情节对量刑结论的影响以及控辩双方的量刑意见和建议的说理。第三,裁判文书量刑说理应当规范透彻,根据个案结合当事人自身特点进行个性化说理。为了实现"繁简分流",可以根据案情对不同类型案件进行不同程度的说理。最后,要提高法官说理能力。第一,提高法官量刑说理意识,让法官认识到量刑说理的重要性和必要性。第二,经常为法官提供专业的培训,从技术上提高说理能力。第三,将量刑说理能力作为法官考评的参考因素之一,以考评的方式引起法官的自我监督。第四,在选拔法官的时候要严格把关,使真正有水平有能力的人成为法官。
[Abstract]:The sentencing principle of criminal judgment instrument is the explanation of the sentencing conclusion made by the judge, and the reason of sentencing is reflected in the judgment instrument. Due to the generality of the legal norm, the judge can arbitrarily select one of the sentencing points within the legal sentencing range depending on the discretion of the judge. The sentencing theory system of the referee instrument can limit the discretion of the judge to some extent, ask the judge to give full explanation on the sentencing conclusion made by the judge, reflect and review his judgment constantly in this process, and finally get the objective and reasonable explanation. With the promotion of the online work of the referee instrument, the audience of the referee instrument has been expanded from simple individuals to the public. A logical and reasonable judgment instrument can make the public see the process of the judge's thinking and the process of the heart card, make the whole sentencing procedure transparent, reduce public doubts, further enhance the acceptability of the judgment instrument, and establish the judicial credibility, so as to guarantee the procedural justice. China's decision-making instrument is weak in sentencing theory, which shows in the following aspects. First, the unbalance of sentencing concept, on the making of the referee instrument, focus on the conviction and reason, ignore the sentencing theory. Secondly, it is not only strictly observed in the structure of the instrument, but it is seriously formatted in the judgment instrument of our country. "header, fact part, reason part, judgment result part and tail part" In the absence of a strict distinction between conviction and sentence, the specific sentencing circumstances are not described, and only the sentencing evidence is simply listed, and the reasoning is not targeted, and many judgments are similar to the description of the sentencing circumstances. Third, the sentencing theory is not sufficient, the key place is vague, the number of a few pens have been taken. Fourth, there is a general lack of strict legal reasoning in the sentencing theory of our country. inherent syllogism The reasoning model lacks the reasoning space of the referee instrument, and the whole judgment document seems to be scattered and stacked in a few words. Fifth, our country's decision-making instrument should ignore the defense's opinions too, and it will not be explained whether the opinions of the defense are adopted or not, and Jane can be simplified when making referee documents. At the same time, the author points out the following reasons: Firstly, "How many people are in the case" (c) The judicial environment and "Light conviction and light penalty" The traditional concept makes the judge not willing to speak; secondly, it is subject to the intervention of the internal superior leaders and the political commissar and the supervision of the public opinion, so as to avoid "There is much to be lost." In the end, China's current judge's elective requirement is not high, and the judge whose professional level is low is limited by its own theory foundation, the expression ability is not strong, the spoken and written language is poor, and there is no ability to make a thorough statement. Therefore, it is urgent to perfect the sentencing theory in the criminal judgment instrument. To perfect the sentence theory, we should perfect the system norm. First, the legislation clearly defines the theory of sentencing, and can draw lessons from the foreign experience to raise the sentencing theory to the legal level to enforce the judge's reasoning. Second, increase the sentencing reply procedure, communicate the sentencing proposal of the public prosecution organ to the defense before the trial, and the defense and defense parties can conduct legal court investigation and debate on the sentence when the trial is heard, so as to provide the judge with the way of thinking and comprehensively obtain the sentencing conclusion accepted by both parties. Third, establish the sentencing theory incentive mechanism, in order to see the interests to stimulate the judge's argument. Fourthly, we should set up an exemption system for the judge's instrument, let the judge put down his concerns and talk. Fifth, push the referee instrument to open the net, put the referee instrument under the supervision of the masses, make the judge make a sufficient argument to the conclusion of the sentencing. Secondly, clear the elements of sentencing theory. At the time of sentencing, the principle of legality, rationality, logic and sufficiency should be adhered to, and a legal, reasonable, logical and sufficient sentence should be taken to make the judgment instrument more professional. Secondly, on the basis of establishing the principle of sentencing, fundamentally solve the sentencing theory, that is, the content of sentencing theory. An effective sentence theory should include the basis of sentencing, the influence of sentencing circumstances on the conclusion of sentencing, and the theory of sentencing opinions and suggestions of both parties. Third, the sentencing principle of the referee instrument should be thoroughly standardized, according to the individual characteristics of the case and the individual's own characteristics. to achieve "Traditional simple shunt" Different types of cases can be rationalized according to the merits of the case. Finally, to improve the judge's reasoning ability. First, improve the judge's sense of sentencing, let the judge realize the importance and necessity of sentencing theory. Secondly, professional training is often provided for judges and technical skills are technically improved. Thirdly, as one of the reference factors of judge's evaluation, the judge's self-supervision will be induced in the way of evaluation. Fourthly, strict control should be exercised in the selection of judges, so that the truly horizontal and competent person becomes a judge.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2273417
[Abstract]:The sentencing principle of criminal judgment instrument is the explanation of the sentencing conclusion made by the judge, and the reason of sentencing is reflected in the judgment instrument. Due to the generality of the legal norm, the judge can arbitrarily select one of the sentencing points within the legal sentencing range depending on the discretion of the judge. The sentencing theory system of the referee instrument can limit the discretion of the judge to some extent, ask the judge to give full explanation on the sentencing conclusion made by the judge, reflect and review his judgment constantly in this process, and finally get the objective and reasonable explanation. With the promotion of the online work of the referee instrument, the audience of the referee instrument has been expanded from simple individuals to the public. A logical and reasonable judgment instrument can make the public see the process of the judge's thinking and the process of the heart card, make the whole sentencing procedure transparent, reduce public doubts, further enhance the acceptability of the judgment instrument, and establish the judicial credibility, so as to guarantee the procedural justice. China's decision-making instrument is weak in sentencing theory, which shows in the following aspects. First, the unbalance of sentencing concept, on the making of the referee instrument, focus on the conviction and reason, ignore the sentencing theory. Secondly, it is not only strictly observed in the structure of the instrument, but it is seriously formatted in the judgment instrument of our country. "header, fact part, reason part, judgment result part and tail part" In the absence of a strict distinction between conviction and sentence, the specific sentencing circumstances are not described, and only the sentencing evidence is simply listed, and the reasoning is not targeted, and many judgments are similar to the description of the sentencing circumstances. Third, the sentencing theory is not sufficient, the key place is vague, the number of a few pens have been taken. Fourth, there is a general lack of strict legal reasoning in the sentencing theory of our country. inherent syllogism The reasoning model lacks the reasoning space of the referee instrument, and the whole judgment document seems to be scattered and stacked in a few words. Fifth, our country's decision-making instrument should ignore the defense's opinions too, and it will not be explained whether the opinions of the defense are adopted or not, and Jane can be simplified when making referee documents. At the same time, the author points out the following reasons: Firstly, "How many people are in the case" (c) The judicial environment and "Light conviction and light penalty" The traditional concept makes the judge not willing to speak; secondly, it is subject to the intervention of the internal superior leaders and the political commissar and the supervision of the public opinion, so as to avoid "There is much to be lost." In the end, China's current judge's elective requirement is not high, and the judge whose professional level is low is limited by its own theory foundation, the expression ability is not strong, the spoken and written language is poor, and there is no ability to make a thorough statement. Therefore, it is urgent to perfect the sentencing theory in the criminal judgment instrument. To perfect the sentence theory, we should perfect the system norm. First, the legislation clearly defines the theory of sentencing, and can draw lessons from the foreign experience to raise the sentencing theory to the legal level to enforce the judge's reasoning. Second, increase the sentencing reply procedure, communicate the sentencing proposal of the public prosecution organ to the defense before the trial, and the defense and defense parties can conduct legal court investigation and debate on the sentence when the trial is heard, so as to provide the judge with the way of thinking and comprehensively obtain the sentencing conclusion accepted by both parties. Third, establish the sentencing theory incentive mechanism, in order to see the interests to stimulate the judge's argument. Fourthly, we should set up an exemption system for the judge's instrument, let the judge put down his concerns and talk. Fifth, push the referee instrument to open the net, put the referee instrument under the supervision of the masses, make the judge make a sufficient argument to the conclusion of the sentencing. Secondly, clear the elements of sentencing theory. At the time of sentencing, the principle of legality, rationality, logic and sufficiency should be adhered to, and a legal, reasonable, logical and sufficient sentence should be taken to make the judgment instrument more professional. Secondly, on the basis of establishing the principle of sentencing, fundamentally solve the sentencing theory, that is, the content of sentencing theory. An effective sentence theory should include the basis of sentencing, the influence of sentencing circumstances on the conclusion of sentencing, and the theory of sentencing opinions and suggestions of both parties. Third, the sentencing principle of the referee instrument should be thoroughly standardized, according to the individual characteristics of the case and the individual's own characteristics. to achieve "Traditional simple shunt" Different types of cases can be rationalized according to the merits of the case. Finally, to improve the judge's reasoning ability. First, improve the judge's sense of sentencing, let the judge realize the importance and necessity of sentencing theory. Secondly, professional training is often provided for judges and technical skills are technically improved. Thirdly, as one of the reference factors of judge's evaluation, the judge's self-supervision will be induced in the way of evaluation. Fourthly, strict control should be exercised in the selection of judges, so that the truly horizontal and competent person becomes a judge.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
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3 龙宗智;刑事判决应加强判决理由[J];现代法学;1999年02期
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