酌定减轻处罚条款适用研究
发布时间：2019-04-01 21:04
【摘要】：依法治国的当下,刑事司法中越来越多地出现刚性的条文与复杂的案情碰撞的局面,二者之间常常存在巨大的鸿沟,而且随着时代的发展,这一鸿沟只会扩大不会缩小。酌定减轻处罚条款恰可为裁判者架起衔接二者的“天桥”,对于实现罪刑均衡与量刑公正在理论价值上功不可没。但是沿袭自上个世纪的酌定减轻处罚条款,尽管在世纪末修法之际的废改浪潮中艰难地存活了下来,但其在新世纪的发展状况仍不容乐观,实体条件的“宽松”与程序规定的“严苛”,使得该款动不得、用也难,渐有沦为“僵尸条款”之势。本文从实证的视角出发,借由对70起与酌定减轻处罚条款适用相关的案例进行分析,归纳出酌定减轻处罚条款所面临的困境,并尝试以一种类型化的思路对其适用情形进行归纳,在确定性与开放性中寻求平衡,以期使酌定减轻处罚条款在新的历史语境下焕发出应有的活力。文章第一部分对理论研究现状进行简单梳理,将理论界所重点关注的问题进行归纳:功能定位存争议,适用条件不明晰,核准程序过严苛,适用案例难寻觅。在对70起与酌定减轻处罚条款适用相关的案例细致研读的基础上,文章第二部分将司法实务中适用酌定减轻处罚条款时面临的困境与存在的问题进行明晰:适用规范性不足,法官说理不充分;适用案件范围过窄,囿于几类陈旧罪名;滥用误用和当用而不用现象共存;适用时没有底线任性减轻。一面是实务需求膨胀,一面是理论研究热情走低,酌定减轻处罚条款陷于尴尬境地的深层次原因在于:其一,理论上对该条款的正当性仍存疑虑;其二,实务中因法律与解释的缺位致使“特殊情况”难以认定。正当性关乎条款存活的命脉,因此文章第三部分则致力于解决酌定减轻处罚条款面临的正当性上的疑问。首先通过对衡平原则的理解、从罪刑法定原则实质内涵、罪刑相适应与刑罚个别化等角度,重新释明酌定减轻处罚条款与罪刑法定原则的关系;并分别从纵向——我国酌定减轻处罚条款的“前世今生”与横向——域外刑法的典型规定两个维度作为例证,辅证酌定减轻处罚条款存在的正当性。其次通过论证酌定减轻处罚适用核准权适当下放的可能性与两审终审制渐进式的改革前景,从实体与程序两端同时发力,对条款在适用中所面临的层层复核与两审终审刑事审级制度的冲突予以纾解。在承认条款正当性的前提下,第四部分首先回应了条款的功能定位问题,随着司法精细化的深入推进以及法律监督的日益完善,刑事司法将越来越依赖法官的自由裁量,作为戴枷的舞者,法官不能戴枷不舞,因此不必人为限定酌定减轻处罚条款的适用范围,亦不必执着于追问其究竟是“紧急出口”还是“常规通道”,而应重点着眼于对法官适用理由的辨析。其次从解释论的视角,根据举重以明轻的解释原理以及体系解释使条文相协调的解释方法,提出酌定减轻不可任性减轻的结论,减轻原则上以下一量刑幅度为限,也契合了最高人民法院刑事量刑标准的规定。而文章最后,也是本文最具现实意义的部分,是在现有法律规定的框架下,尝试为法官适用酌定减轻处罚条款寻求一条最具操作性的通道,通过对以往适用案例的分析归纳,从规则明显失衡、被害人因素介入、期待可能性、特情引诱等类型化的视角对“特殊情况”进行建构,将该条款的适用纳入到类型化、规范化的轨道上。
[Abstract]:The present day of the rule of law, the more and more rigid provisions in the criminal justice and the complex circumstances of the case, there is often a huge gap between them, and with the development of the times, the gap will only expand and will not be reduced. At the discretion of the penalty clause, the judge can set up the "Overpass" of the connection with the judge, and it can't be used to realize the balance of the crime and the justice of the sentencing. However, according to the discretionary mitigation provisions of the last century, despite the difficult survival in the wave of waste reform at the end of the end of the century, the development situation in the new century is still not optimistic, and the "loose" of the physical condition and the "draconian" prescribed by the procedure make the paragraph not move, It's hard to use, and it's becoming a "Zombie clause". In this paper, from the point of view of the positive analysis, the author analyzes the case of the application of the penalty clauses, and sums up the difficulties facing the penalty clauses, and tries to sum up the applicable cases in a type of thought. The balance is sought in certainty and openness, with a view to making the discretionary reduction of the provisions of the penalty in a new historical context. The first part of the article makes a brief analysis of the present situation of the theoretical research, and sums up the problems focused on the theoretical circle: the function positioning is controversial, the conditions of application are not clear, the approval procedure is too strict, and the application cases are difficult to find. On the basis of the careful study of 70 cases related to the application of the penalty clause, the second part of the article makes clear the difficulties and problems in the application of the penalty clause in the judicial practice: the application of the standard is not enough, and the judge's argument is not sufficient; The scope of the applicable cases is too narrow to be applicable to several types of old-fashioned charges; abuse and use are abused and used without the coexistence of phenomena; when applicable, there is no risk of the bottom line. One side is the expansion of the practical demand, and one side is the enthusiasm of the theoretical research, and the deep reason that the penalty clause is put into an awkward position is that: firstly, the validity of the article is still in doubt; secondly, the absence of the law and the explanation in the practice makes the "special case" difficult to determine. The third part of the article is to solve the question of the validity of the penalty clause. First of all, through the understanding of the principle of equity, the relationship between the penalty clauses and the legal principle of the crime and punishment should be reformulated from the aspects of the substantive connotation of the legal principle of the crime, the adaptation of the crime and the individualization of the penalty, and so on. In addition, the two dimensions of the "the life of the past life" and the transverse _ extraterritorial criminal law of the penalty clauses are taken as an example from the longitudinal _ China discretion, and the validity of the penalty clauses should be reduced as appropriate. Secondly, through the demonstration of the possibility of the appropriate decentralization of the application of the applicable nuclear power to the penalty and the gradual reform of the two-year-final system, the two ends of the entity and the procedure force the force, and the two-layer review of the provisions in the application and the conflict of the two-year-of-final-court-level system are solved. On the premise that the validity of the clause is recognized, the fourth part first responds to the functional positioning of the articles, and with the deepening of the judicial refinement and the perfection of the legal supervision, the criminal justice will depend more and more on the discretion of the judge as a dancer, The judge can't wear a non-dance, so it is not necessary to define the scope of application of the penalty clause to the discretion of the judge, nor to ask whether it is a "emergency exit" or a "conventional channel", but should focus on the analysis of the reasons for the application of the judge. Secondly, from the point of view of the explanation, according to the interpretation principle of weight lifting and the interpretation of the system explanation to harmonize the provisions, the author puts forward the conclusion that the non-willful mitigation can be reduced and the following sentence is reduced in principle. It also fits the provisions of the Supreme People's Court's criminal sentencing standards. In the end, the article is also the most practical part of the article, under the framework of the existing law, try to find a most operational channel for the judge to apply the discretionary mitigation penalty clause, The special case "is constructed according to the types of the factors such as the intervention of the victim, the possibility of expectation and the inducement of the special feeling, and the application of the provision is incorporated into the typed and standardized track.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2451908
[Abstract]:The present day of the rule of law, the more and more rigid provisions in the criminal justice and the complex circumstances of the case, there is often a huge gap between them, and with the development of the times, the gap will only expand and will not be reduced. At the discretion of the penalty clause, the judge can set up the "Overpass" of the connection with the judge, and it can't be used to realize the balance of the crime and the justice of the sentencing. However, according to the discretionary mitigation provisions of the last century, despite the difficult survival in the wave of waste reform at the end of the end of the century, the development situation in the new century is still not optimistic, and the "loose" of the physical condition and the "draconian" prescribed by the procedure make the paragraph not move, It's hard to use, and it's becoming a "Zombie clause". In this paper, from the point of view of the positive analysis, the author analyzes the case of the application of the penalty clauses, and sums up the difficulties facing the penalty clauses, and tries to sum up the applicable cases in a type of thought. The balance is sought in certainty and openness, with a view to making the discretionary reduction of the provisions of the penalty in a new historical context. The first part of the article makes a brief analysis of the present situation of the theoretical research, and sums up the problems focused on the theoretical circle: the function positioning is controversial, the conditions of application are not clear, the approval procedure is too strict, and the application cases are difficult to find. On the basis of the careful study of 70 cases related to the application of the penalty clause, the second part of the article makes clear the difficulties and problems in the application of the penalty clause in the judicial practice: the application of the standard is not enough, and the judge's argument is not sufficient; The scope of the applicable cases is too narrow to be applicable to several types of old-fashioned charges; abuse and use are abused and used without the coexistence of phenomena; when applicable, there is no risk of the bottom line. One side is the expansion of the practical demand, and one side is the enthusiasm of the theoretical research, and the deep reason that the penalty clause is put into an awkward position is that: firstly, the validity of the article is still in doubt; secondly, the absence of the law and the explanation in the practice makes the "special case" difficult to determine. The third part of the article is to solve the question of the validity of the penalty clause. First of all, through the understanding of the principle of equity, the relationship between the penalty clauses and the legal principle of the crime and punishment should be reformulated from the aspects of the substantive connotation of the legal principle of the crime, the adaptation of the crime and the individualization of the penalty, and so on. In addition, the two dimensions of the "the life of the past life" and the transverse _ extraterritorial criminal law of the penalty clauses are taken as an example from the longitudinal _ China discretion, and the validity of the penalty clauses should be reduced as appropriate. Secondly, through the demonstration of the possibility of the appropriate decentralization of the application of the applicable nuclear power to the penalty and the gradual reform of the two-year-final system, the two ends of the entity and the procedure force the force, and the two-layer review of the provisions in the application and the conflict of the two-year-of-final-court-level system are solved. On the premise that the validity of the clause is recognized, the fourth part first responds to the functional positioning of the articles, and with the deepening of the judicial refinement and the perfection of the legal supervision, the criminal justice will depend more and more on the discretion of the judge as a dancer, The judge can't wear a non-dance, so it is not necessary to define the scope of application of the penalty clause to the discretion of the judge, nor to ask whether it is a "emergency exit" or a "conventional channel", but should focus on the analysis of the reasons for the application of the judge. Secondly, from the point of view of the explanation, according to the interpretation principle of weight lifting and the interpretation of the system explanation to harmonize the provisions, the author puts forward the conclusion that the non-willful mitigation can be reduced and the following sentence is reduced in principle. It also fits the provisions of the Supreme People's Court's criminal sentencing standards. In the end, the article is also the most practical part of the article, under the framework of the existing law, try to find a most operational channel for the judge to apply the discretionary mitigation penalty clause, The special case "is constructed according to the types of the factors such as the intervention of the victim, the possibility of expectation and the inducement of the special feeling, and the application of the provision is incorporated into the typed and standardized track.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
【参考文献】
相关期刊论文 前10条
1 刘凌梅;;特殊减轻制度的司法适用及规范改进[J];法律适用;2016年07期
2 彭文华;;酌定减轻处罚的自由裁量与技术制衡[J];法学评论;2016年03期
3 李立众;;刑法解释的应有观念[J];国家检察官学院学报;2015年05期
4 李剑_";唐建秋;;法定刑以下判处刑罚的特殊情况和量刑[J];人民司法;2015年14期
5 马生安;周永军;;刑事裁判中权衡现象的分析与治理[J];法律适用;2015年07期
6 冉巨火;;经验而非逻辑:责任主义量刑原则如何实现[J];政治与法律;2015年06期
7 刘军;;减轻处罚的功能定位与立法模式探析[J];法学论坛;2015年03期
8 张明楷;;论减轻处罚与免除处罚[J];人民检察;2015年07期
9 丰霏;;论法官的裁判选择[J];法律方法;2015年01期
10 于阳;田军;;酌定减轻量刑权的适应性调整研究[J];社科纵横;2015年03期
相关硕士学位论文 前2条
1 董为;论酌定减轻制度[D];西南政法大学;2012年
2 张万顺;酌量减轻处罚研究[D];湘潭大学;2008年
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