论犯罪后的态度对量刑的影响

发布时间：2019-05-16 04:38

【摘要】：根据并合主义与责任主义的要求,在正确选择了法定刑后,首先根据影响责任刑的情节裁量责任刑,然后在责任刑之下根据影响预防刑的情节裁量预防刑并确定宣告刑。犯罪后的态度是影响预防刑的重要情节。对于自首、立功与坦白能否从宽以及从宽的幅度,必须进行实质判断;不自首、不坦白是行为人犯罪后的常态,不能成为增加预防刑的情节。反省、悔罪与赔礼道歉虽然不是法定量刑情节,却是减少预防刑的重要情节,法官在裁量预防刑时必须予以重视。事后积极退赃、赔偿损失与积极挽回损失的行为,既可能使特殊预防必要性减少,也可能使一般预防必要性减少。行为人犯罪后为逃避刑事责任而隐瞒事实、毁灭证据与负案潜逃属于犯罪后的常态,不能成为增加预防刑的情节。
[Abstract]:According to the requirements of parallelism and responsibility doctrine, after the correct selection of legal punishment, the responsible penalty is first determined according to the circumstances affecting the responsible penalty, and then the preventive punishment and the declaration of punishment are determined according to the circumstances affecting the preventive punishment under the responsible penalty. The attitude after the crime is an important plot that affects the prevention of punishment. For surrender, meritorious service and confession can be lenient and lenient, we must make a substantive judgment; not turning yourself in, not confession is the norm after the perpetrator committed the crime, and can not become the circumstances of increasing the preventive punishment. Introspect, repentance and apology are not statutory circumstances of sentencing, but they are important circumstances to reduce preventive punishment. Judges must pay attention to it when deciding preventive punishment. The behavior of actively returning stolen goods, compensation for losses and positive recovery of losses after the event may reduce the necessity of special prevention or the necessity of general prevention. After committing a crime, the perpetrator conceals the facts in order to evade criminal responsibility, and the destruction of evidence and the flight of the responsible case are the normal after the crime, which can not become the circumstances of increasing the preventive punishment.
【作者单位】：清华大学法学院;
【分类号】：D914

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