从“直线型”到“回转型”——适用吸收原则量刑流程的改进

发布时间：2019-04-24 12:07

【摘要】：在对数罪案件适用吸收原则量刑时,一般采取"先分后并"的直线型流程:先对各罪分别量刑,再对各罪的宣告刑进行吸收处理。在此流程下,因为吸收处理导致刑罚缩减,加上法官对各罪分别量刑时不考虑其他罪名的情况、对吸收并罚后的结果无法进行调整等原因,最终量刑结果可能明显偏轻,从而带来罪责刑不相适应、不同被告人之间量刑失衡以及刑事预防目的丧失等问题。为了避免上述问题,可将直线型流程改进为回转型流程:法官对各罪分别量刑并吸收并罚后,如果认为决定执行的刑罚明显偏轻,则重新对各罪分别量刑,同时对主罪适当从重处罚,并再次进行吸收并罚,从而保证最终的量刑结果适当。回转型流程的关键在于量刑流程回转及对主罪适当从重处罚,其正当性根据在于数罪报应刑的叠加、预防再犯可能的必要,以及整体量刑目标的选择。实践运用回转型流程时,应当注意不能跨法定刑档次从重处罚,只能提升一个量刑幅度,且原则上不得将死缓提升为死刑立即执行。
[Abstract]:When the principle of absorption is applied to the sentencing of several crimes, the straight-line process of "dividing first and then combining" is generally adopted: first, the penalty of each crime is sentenced separately, and then the sentence of each crime is absorbed and dealt with. Under this process, due to the reduction of penalties resulting from absorption treatment, as well as the fact that judges do not consider other offences when sentencing each crime separately, and so on, the final sentencing result may be significantly lighter, for example, the result of the absorption and punishment cannot be adjusted, and so on. As a result, the punishment of criminal responsibility is not suitable, the sentencing imbalance between different defendants and the loss of the purpose of criminal prevention and so on. In order to avoid the above-mentioned problems, the linear process can be improved into a transition process: after the judge has imposed and absorbed the penalty for each crime, if he considers that the penalty decided to be carried out is significantly lighter, the penalty for each crime will be re-imposed separately. At the same time, the main crime of appropriate punishment, and the absorption and punishment, so as to ensure that the final sentencing results are appropriate. The key of the transition process lies in the turn of the sentencing process and the proper and serious punishment of the main crime. Its legitimacy lies in the superposition of the number of crimes to be punished, the necessity to prevent recurrence, and the choice of the overall sentencing goal. When applying the transformation process, we should pay attention to the fact that the punishment should not be severe across the legal grade, only one range of sentence can be increased, and in principle, the death sentence should not be promoted to death penalty immediately.
【作者单位】：清华大学法学院;
【分类号】：D924.1

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