生产、销售假药罪刑罚失衡的量刑防范

发布时间：2018-04-19 18:34

本文选题：刑罚失衡 + 生产　；参考：《东北师范大学》2013年硕士论文

【摘要】：刑罚失衡概念是基于罪刑均衡、刑罚个别化理论而提出的，其不同于因两者而产生的刑罚合理差异，是罪刑不均在宣告刑上的集中体现，反映了立法与司法刑罚规范化的问题。刑罚失衡关涉法治建设、社会安定、人权保障等重大问题，必当着力防范。《刑法修正案（八）》在保护民生的意义上确实发挥了重大作用，但也加深了生产、销售假药罪（下文简称“假药犯罪”）刑罚失衡的程度。该危害在客观上表现为立法规范的罪刑失衡和司法适用的量刑失衡，由此可能导致假药犯罪刑罚裁量标准的模糊和量刑的不公正；在主观上表现为思想观念的局限和思维方式的僵化，从而可能产生重刑思想并陷入主观归罪的误区。刑罚失衡的显性原因是立法技术缺陷和司法裁量失范，体现为无限额罚金刑的不明确性和资格刑功能的缺失、问责制度的缺位、裁量权行使的错误；隐性原因则是职业素养欠缺和法律权属冲突，体现为立法者和司法者对刑法精神认知能力的欠缺，以及立法权和司法权不均衡等问题。无论是以美国为代表的计量式量刑模式、以英国为代表的论理式量刑模式都意在摆脱刑罚失衡的困扰；无论是以量刑委员会、律师协会还是人民法院为主体制定的量刑规范都意在建立量刑防范的制度。基于我国司法现状，量刑防范应着重实体和程序两个层面。在实体层面，，强调合理确定量刑基准、规范酌定量刑情节，从而达到科学统一量刑方法、防止量刑偏差的目的；在程序层面，强调弱化审判主体职权、强化控诉主体职权、赋予其他参与主体相应权利，从而起到保障当事人合法权益、规范裁量权的效果。
[Abstract]:The concept of penalty imbalance is based on the theory of equilibrium of crime and punishment and individualization of penalty, which is different from the reasonable difference of penalty caused by them, and it is the concentrated embodiment of unevenness of crime and punishment in proclamation penalty, which reflects the standardization of legislation and judicial punishment. The imbalance of punishment is related to the construction of the rule of law, social stability, human rights protection and other major issues. We must focus on prevention. The < Criminal Law Amendment (8) > has indeed played a major role in protecting the people's livelihood, but it has also deepened production. The extent to which the penalties for the sale of counterfeit drugs (hereinafter referred to as "counterfeit drug offences") are out of balance. The harm objectively manifests itself in the imbalance of crime and punishment as well as the penalty imbalance of judicial application, which may lead to the ambiguity of criminal penalty discretion standard and the unfairness of sentencing. Subjectively, the limitation of ideology and the ossification of thinking mode may lead to heavy punishment and fall into the misunderstanding of subjective imputation. The obvious causes of penalty imbalance are legislative technical defects and judicial discretion, which are reflected in the uncertainty of unlimited fine penalty, the lack of function of qualification penalty, the absence of accountability system, and the error of exercising discretion; The hidden reason is the lack of professional literacy and the conflict of legal ownership, which is reflected in the lack of cognitive ability of legislators and judiciaries to the spirit of criminal law, as well as the imbalance between legislative power and judicial power. Both the metrological sentencing model represented by the United States and the argumentative sentencing model represented by the United Kingdom are intended to get rid of the problem of penalty imbalance; whether it is the sentencing Commission, The bar association or the people's court establishes the sentencing standard for the main body, which is intended to establish the system of sentencing prevention. Based on the current judicial situation in China, sentencing prevention should focus on two levels: substantive and procedural. At the substantive level, it emphasizes the reasonable determination of sentencing benchmark, standardizes the discretion of sentencing circumstances, so as to achieve the purpose of scientific unified sentencing method, to prevent sentencing deviation; in the procedural level, it emphasizes the weakening of the authority of the main body of the trial and the strengthening of the authority of the subject of complaint. Other participants are given the right to protect the legitimate rights and interests of the parties and regulate the discretion.
【学位授予单位】：东北师范大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D924

【参考文献】