论刑罚适用价值理念及其在量刑中的应用

【作者】 穆鑫；

【导师】 张晶；

【作者基本信息】 安徽大学 ， 法律， 2007， 硕士

【摘要】 刑罚裁量是刑事审判活动的两个基本环节之一,刑罚裁量的结果不仅是法官适用刑事法律的结果,也是法官的价值观念在具体个案中的体现。量刑问题究其本质是自由裁量权的行使问题,而自由裁量权就是在价值理念上的运作。公正、慎刑、人道是现代刑罚适用的基本价值理念,将其正确应用于刑罚裁量过程中,将成为量刑公正的活水之源。公正是司法永恒的价值追求,也是刑事法官裁量刑罚的根本价值观。量刑公正的基本含义,是指人民法院对犯罪人决定并裁量刑罚时,应当做到依法进行,有罪当罚,无罪不罚,轻罪轻罚,重罪重罚,罚当其罪,罪刑相称,也就是实现罪与刑的均衡。一般而言,具有三方面的基本要求:程序公正、实体公正与公平裁判。实现量刑的程序公正,首先应当让量刑进入庭审程序,成为控辩双方可参与、对话、论辩的内容;其次,应当在裁判文书中公开量刑的理由。实体公正的要求就是做到罪刑均衡。要实现罪与刑的均衡,必须将行为的社会危害性和行为人的人身危险性结合起来考虑,以社会危害性为决定刑罚的基础,以人身危险性为调节的依据。量刑的公正不仅包括个案的罪刑均衡,而且包括个案之间的量刑均衡,即同罪同罚。避免个案间量刑失衡可以通过加强立法的完善、细化量刑标准、充分发挥案例的指导作用等途径解决。慎刑理念是刑罚适用中的重要价值观。它要求刑事法官谨慎用刑,依法裁量,决不轻易地使用刑罚,更不能恣意用刑和滥施刑罚。我国传统司法中的慎刑、恤刑思想应当为当代刑罚适用汲取和继承。贯彻慎刑的理念,必须树立刑罚是解决社会矛盾最后手段的观念,强化“不得已之恶须不得已而用之”的意识。死刑的适用是贯彻慎刑理念的一个突出问题,关于死刑存废问题的争论由来已久,我国对于死刑适用问题的基本态度是:不废除死刑,但依法严格控制死刑。坚持少杀、慎用死刑,也是我国以一贯之的刑事政策。在死刑的适用上贯彻慎刑观念,一要树立“铁案”意识,严格标准,把好死刑适用关;二要正确把握“严打”整治斗争中死刑的适用,不能因为执行“严打”政策,超越范围和尺度降格以求,造成量刑失当;三要正确对待民愤对于死刑案件的影响。除了死刑的适用以外,贯彻慎刑的理念,还需要彻底转变重定罪、轻量刑的观念。在对抽象性法律条文的解释、适用以及社会效果与法律效果的取舍上,慎刑的理念均应有所体现和应用。人道理念是刑事法官量刑的人本价值观,它要求刑事法官注重保障人权,讲究宽容和道义,裁量刑罚应当与人的本性相符合,尽可能地宽缓,即刑法的宽容性、轻缓性和道义性。人道的刑罚适用价值理念要求刑事法官在量刑中摒弃重刑主义思想,实现用刑的轻缓化。但量刑轻缓化并不等于说刑罚越轻越好,而是该严当严,该宽则宽,宽严相济,罚当其罪。在刑罚裁量中贯彻人道理念,一是严格控制对死刑立即执行的适用;二是正确把握“严打”刑事政策中“从重”的尺度;三是重视缓刑以及管制、拘役、单处罚金等非监禁刑的适用;四是刑种的选择和刑期的裁量应当在合法的前提下因人而异,视情而定,特别是审理未成年人犯罪、弱势人群犯罪等案件中,应当依情节有所区别。更多还原

【Abstract】 That the penalty cuts amounts is criminal trial one of flexible fundamental two links , that the penalty cuts the amounts result is that the judge applies to criminal law result not only , is also judge’s values embodiment in concrete case. That the measurement of penalty problem investigates whose nature is a discretion’s exercise a problem , the discretion is the operation on value idea but. Impartial , careful punishment, humanity are modern fundamental penalty value suitable for use idea, in applying whose lightness to a penalty cut amounts process, source of will become impartial flowing water of measurement of penalty.The value being that the judiciary is eternal impartially is run after, is is also that the criminal judge cuts basic amounts penalties outlook on values. Measurement of penalty impartial fundamental import, be finger people’s court face to face commit a crime person decision and amounts penalty now and then, ought to achieve be in progress according to law, guilt should fine forfeit, innocent do not fine forfeit, minor crime light fine forfeit, felony heavy penalty, fine forfeit ding-dang it’s crime, crime punishment be commensurate to, that is , come true crime and punishment even. In general Er Yan , have fundamental request in three aspects: Procedure is impartial , the entity is impartial and acts as a referee impartially. The procedure realizing measurement of penalty is impartial, ought to let measurement of penalty enter court hearing procedure first, content becoming prosecution and defense but participation , having a dialogue , debating with; Secondly, ought to make measurement of penalty’s known to the public in judge rapporteur .The entity demands to be that crime punishment is even achieve impartially. Balance needing to realize crime and punishment, must combine the behavior society harmfulness person of behavior people danger thinking, take society harmfulness as the basis deciding a penalty’s , take person danger as the basis measuring. Not only the measurement of penalty justice include the case crime punishment balance , but also the measurement of penalty between including case is even, be with crime and fine forfeit. Approach such as avoiding the case room measurement of penalty unbalance being able to pass reinforcing the legislation improving and perfecting , the thin melt criterion of imposing penalty , bringing the case directive function into play sufficiently is resolved.Careful punishment idea is penalty important outlook on values in applying to. It requires that the criminal judge is cautious put to torture, cutting amounts according to law, use the penalty , can not put to torture wilfully and hackneyed Shi penalty by no means effortlessly. Careful punishment in our country tradition judiciary, sympathizes punishment thought ought to be that the present age penalty is suitable for use draw and inherit. Idea putting careful punishment into effect, must set up a penalty is the mental consciousness resolving final means of social contradictions concept , strengthening "evil target of must act against the will but using of acting against the will". The death penalty applying to is to put a outstanding problem of careful punishment idea into effect, the argument about that the death penalty stores the useless problem is as old as the hills , that our country applies to fundamental problem attitude to the death penalty is: Not abolishing a death penalty, but according to law strict. Put careful punishment concept into effect on the death penalty applying to, one needing to set up "iron case " mental consciousness , the strict standard, keep good control on the death penalty is suitable for use; Applying to that two asks to grasp "the strike-hard campaign " middle death penalty correctly, can not settle for a second best , bring about measurement of penalty because of carrying out "severe crackdown on crimes " policy , going beyond the scope with dimension improper; Effect that three ask to treat people’s wrath correctly to capital case. Except the death penalty applying to, the idea putting careful punishment into effect , the concept requiring that the thorough change highly values the measurement of penalty being convicted , making light of. Apply to in making an explanation to abstract law article, as well as careful punishment idea should have what embodied and applied without exception on the social effect and law effect making a choice.Humanity idea is this outlook on values of criminal judge measurement of penalty people, its require that the criminal judge attaches importance to guarantee human rights , dainty Catholicism and moral principle, amounts penalties ought to accord with people’s nature , as far as possible, width is slow , are the corporal punishment Catholicism , make light of slowness and moral principle. Value of the humanity penalty suitable for use idea requires that the criminal judge gets rid of heavy penalty doctrine thought in measurement of penalty , come true put to torture making light of is slow melt. That measurement of penalty postpones spending the penalty not equal to speaking feeling better , as making light of more but gently, is to should think that width is then broad , width Yan Xiang aids strictly strictly but, punishment pawns whose crime. In cutting amounts in the penalty carry out humanity idea , applying to once being that strict control carries out immediately to the death penalty; Two is that correct assurance "complies with heavy " dimension in criminal policy "of severe crackdown on crimes "; Three are to pay attention to being reprieved for and controlling , short detention , Shan penalty etc. must imprison the punishment applying to; Four are that the kinds of punishment choice composes in reply a term of imprisonment’s cut amounts ought to vary with each individual, to look at feeling but fix under legal premise , the crowd who brings the commit a crime , weak power of juveniles to trial especially commits a crime waiting to ought to differentiate to some extent according to circumstance in law case.更多还原