量刑规则的改造径路
发布时间：2018-11-12 20:12
【摘要】：量刑规则作为一种法律工具,其制定自然不能脱离工具理性的思维模式,因此何为量刑规则目的应是首要研究任务,量刑规则的制定是权力的运作,也是多方利益博弈的结果,以利益分析为视角得出的量刑规则目的更接近真实,但其应然目的是量刑平等,即规则需要对同等行为做出同等回应。现行量刑规则将量刑步骤分为三个阶段,逐步确定量刑起点、基准刑和宣告刑,并且明确了这三个概念的内涵,具有防止重复评价的重要意义,然而量刑规则在设计上亦存在不少缺陷。现行量刑规则中,量刑起点取代了以往量刑规则中基准刑的起点地位,不过量刑起点不应是一个幅度而应是一个确定的点,并宜通过实证方法获取。基准刑的调节和宣告刑的得出不宜采用以往的比例运算模式,较为合适的做法是对其他影响犯罪构成的犯罪事实和量刑情节进行科学的赋值并采用加减运算法得出宣告刑;赋值需要进行综合的考虑,既要顾及法律体系的整体逻辑,又要兼采社会学、经济学的分析方法,并非传统刑法学所能单独应对。本文的主要内容是对如何改进量刑规则的讨论,研究目的是使量刑规则整体上更具科学性和逻辑性,而非对法官如何适用现行量刑规则的解释。量刑规则作为一种对法官量刑有直接约束力的规则,在实践中对犯罪人的影响可能并不低于《刑法》本身,本文仅是完善量刑规则的初步探讨,还有很多相关问题需要更加深入、具体的研究。
[Abstract]:As a legal tool, the formulation of sentencing rules can not be divorced from the thinking mode of instrumental rationality, so what is the purpose of sentencing rules should be the primary research task, the formulation of sentencing rules is the operation of power, but also the result of multi-interest game. The purpose of sentencing rules from the perspective of benefit analysis is closer to reality, but its aim should be equal sentencing, that is, the rules need to make equal response to the same behavior. The current sentencing rules divide the sentencing steps into three stages, and gradually determine the starting point of sentencing, the standard penalty and the proclamation penalty, and clarify the connotation of these three concepts, which has the important significance of preventing repeated evaluation. However, there are many defects in the design of sentencing rules. In the current sentencing rules, the starting point of sentencing has replaced the position of starting point of benchmark penalty in the past sentencing rules, but the starting point of sentencing should not be a range but a certain point, and it should be obtained by empirical method. The adjustment of standard punishment and the conclusion of proclamation penalty should not adopt the former proportional operation mode. The more appropriate way is to assign scientific value to other crime facts and sentencing circumstances that affect the constitution of crime and to use the arithmetic of addition and subtraction to get the proclamation penalty. The assignment needs to be considered synthetically. It is not only necessary to take into account the whole logic of the legal system, but also to adopt the analytical methods of sociology and economics, which cannot be dealt with separately by the traditional criminal law. The main content of this paper is to discuss how to improve the sentencing rules. The purpose of the research is to make the sentencing rules more scientific and logical as a whole, not to explain how the judges apply the existing sentencing rules. As a direct binding rule on the judge's sentencing, the sentencing rules may have no less influence on the criminal in practice than the Criminal Law itself. This article is only a preliminary discussion on how to perfect the sentencing rules. There are also a lot of related issues need to be more in-depth, specific research.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924
本文编号：2328097
[Abstract]:As a legal tool, the formulation of sentencing rules can not be divorced from the thinking mode of instrumental rationality, so what is the purpose of sentencing rules should be the primary research task, the formulation of sentencing rules is the operation of power, but also the result of multi-interest game. The purpose of sentencing rules from the perspective of benefit analysis is closer to reality, but its aim should be equal sentencing, that is, the rules need to make equal response to the same behavior. The current sentencing rules divide the sentencing steps into three stages, and gradually determine the starting point of sentencing, the standard penalty and the proclamation penalty, and clarify the connotation of these three concepts, which has the important significance of preventing repeated evaluation. However, there are many defects in the design of sentencing rules. In the current sentencing rules, the starting point of sentencing has replaced the position of starting point of benchmark penalty in the past sentencing rules, but the starting point of sentencing should not be a range but a certain point, and it should be obtained by empirical method. The adjustment of standard punishment and the conclusion of proclamation penalty should not adopt the former proportional operation mode. The more appropriate way is to assign scientific value to other crime facts and sentencing circumstances that affect the constitution of crime and to use the arithmetic of addition and subtraction to get the proclamation penalty. The assignment needs to be considered synthetically. It is not only necessary to take into account the whole logic of the legal system, but also to adopt the analytical methods of sociology and economics, which cannot be dealt with separately by the traditional criminal law. The main content of this paper is to discuss how to improve the sentencing rules. The purpose of the research is to make the sentencing rules more scientific and logical as a whole, not to explain how the judges apply the existing sentencing rules. As a direct binding rule on the judge's sentencing, the sentencing rules may have no less influence on the criminal in practice than the Criminal Law itself. This article is only a preliminary discussion on how to perfect the sentencing rules. There are also a lot of related issues need to be more in-depth, specific research.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924
【参考文献】
相关期刊论文 前2条
1 张苏;;定量方法在我国量刑中的应用与前瞻[J];河北法学;2013年12期
2 陈学勇;;关于量刑基准问题的新思考[J];人民司法;2008年03期
，本文编号：2328097
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