案外情节与人身危险性

犯前、犯后情节简单归属于人身危险性不只是语义缺损,而且违背法治原则。因为处罚未然之罪缺乏正当根据。从理论上讲,累犯、惯犯可罚性的根据是行为人蔑视、敌视法益的意志状态能被罪过归属;积极救助、赔偿被害人或者威胁被害人或因部分减轻犯罪侵害程度、或客观说明其犯罪意志状态和改变而可以影响刑罚轻重;行为人自首、立功从宽处罚在于他与法律合作的态度是其再社会化的基本要求。简言之,为安全适用刑法,所谓“人身危险性”在特定情况下可影响刑罚适用的综合评判标准,但不宜直接成为情节的定性根据。

Circumstances Beyond the Case: Uncommitted Crimes and Person-endangering State of Mind

Taking no pains to attribute circumstances before or after a crime to person-endangering state of mind is not justified,for no legal authority can be found to support punishment of an uncommitted crime. The punishment of recidivists and habitual criminals is based on the supposition that the state of mind of the perpetrator is against or in contempt of legal interests and thus is incriminated. Factors such as actively saving,helping or remedying the injured or the endangered or alleviating the harm of a crime,or that the criminal state of mind of the perpetrator was subject to or his/her criminal intent altered due to certain objective elements,may affect the imposition of penalty. The fact that a criminal who surrendered himself/herself to the police or performed a meritorious service to atone for his/her crime may be leniently treated indicates that rehabilitation requires his/her cooperation with law. Taken together,to ensure criminal law smoothly administered,it is inappropriate to take so-called person-endangering state of mind as a general datum to assess the circumstances that will directly affect the imposition of penalties.