论量刑中的责任主义

发布时间：2018-05-28 22:54

本文选题：责任主义 + 量刑　；参考：《海南大学》2014年硕士论文

【摘要】：责任主义是大陆法系刑法理论中的一条基本原则。关于责任原则的含义理论上有不同的见解,大陆法系刑法通说认为,责任主义可以从归责和量刑两个方面考虑,归责中的责任主义即犯罪构成要件中的“有责性”,量刑中的责任主义则是违法性与有责性相乘的结果。但是这样理解责任主义无法积极地承认在责任程度减轻时责任相应的减轻,因此应当从非难可能性的角度理解责任主义。在量刑中贯彻责任原则要求以责任刑作为刑罚的上限,基于预防刑的考量不能超过责任刑,在预防刑与责任刑的关系上大陆法系刑法理论中还存在幅的理论与点的理论之间的争议,从消极的责任主义的角度出发应当赞成点的理论。但是应当认识到无论是幅的理论抑或是点的理论都要求在责任刑之下考量预防刑的大小,这样的思想无论是在我国刑法理论中还是在刑事司法实践中都没有明确体现,也就是说我国刑法中并没有积极地贯彻责任主义原则,在量刑过程中仍然有对数额犯的量刑强调结果责任,将人身危险性作为责任评价要素,缴纳罚金作为刑罚减轻依据,以及将前科、累犯作为法定刑升格条件等非责任主义倾向。在责任主义原则已经成为现代法治国家刑法的基本原则的情况下,我国的刑法理论和司法实践还都未能明确指出责任主义原则。这种情况的形成主要是因为,我国刑法中未能明文规定责任主义作为量刑的指导原则以及量刑实践中“三步式”量刑方法没有很好地区分不同的量刑情节,并且整个量刑过程是一个逐渐递加的过程。因此,通过将我国刑法第五条理解为责任主义原则的体现,在具体的司法实践当中按照影响责任刑与影响预防刑的不同重新划分量刑情节,在量刑情节的适用上严格按照从责任刑到预防刑的顺序。通过在我国刑法理论和量刑实践中贯彻责任主义限定国家刑罚权,更好地保障被告人的人权。
[Abstract]:Responsibility doctrine is a basic principle in the theory of criminal law in continental law system. There are different views on the meaning of the principle of liability in theory. The general theory of criminal law in civil law system holds that liability doctrine can be considered from two aspects of imputation and sentencing, and that liability doctrine in imputation is the "responsibility" in the constitutive elements of a crime. Responsibility doctrine in sentencing is the result of multiplying illegality and responsibility. However, this understanding of responsibilitarianism can not actively acknowledge the corresponding reduction of responsibility when the degree of responsibility is reduced, so we should understand responsibilitarianism from the angle of possibility of blame. Carrying out the principle of responsibility in sentencing requires that the penalty of responsibility should be taken as the upper limit of the penalty, and the consideration based on the penalty of prevention should not exceed the penalty of responsibility. In the relation between preventive punishment and liability penalty, there is still a dispute between the theory of the scope of criminal law and the theory of point in the theory of criminal law of civil law system. From the angle of negative liability doctrine, we should approve the theory of point. However, we should realize that both the theory and the point theory require that the size of preventive punishment should be considered under the responsibility penalty, which is not clearly reflected in the theory of criminal law or in the practice of criminal justice in our country. That is to say, there is no positive implementation of the principle of responsibilism in the criminal law of our country. In the process of sentencing, there is still an emphasis on the result responsibility for the amount of crime in the sentencing process. As well as the criminal record, recidivism as a statutory penalty upgrade conditions and other non-responsibilistic tendencies. Under the circumstance that the principle of responsibility has become the basic principle of the criminal law of the modern country ruled by law, the theory of criminal law and judicial practice in our country have not clearly pointed out the principle of responsibility doctrine. The formation of this situation is mainly due to the fact that the criminal law of our country has failed to explicitly stipulate responsibility doctrine as the guiding principle of sentencing and that the "three-step" sentencing method in sentencing practice does not distinguish between different circumstances of sentencing very well. And the whole sentencing process is a gradual addition process. Therefore, through the understanding of the fifth article of our criminal law as the embodiment of the principle of responsibilitarianism, in the specific judicial practice, the circumstances of sentencing should be reclassified according to the difference between the punishment of influence responsibility and the penalty of influence on prevention. In the application of sentencing circumstances strictly according to the order from responsibility to prevention. In order to better protect the human rights of the accused, the theory of responsibility and the practice of sentencing in our country limit the right of punishment by carrying out the doctrine of responsibility.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1

【参考文献】