论刑罚裁量的基本路径

国内学者关于刑罚裁量路径素有争议。刑罚裁量应当按照"确定基本刑———确定量刑情节轻重———修正基本刑"的路径进行。基本刑的确定要在实证基础上合理确定;量刑情节轻重的确定可以考虑借鉴美国的量刑指南的做法进行,然后据此确定量刑情节的轻重;基本刑的修正要优先考虑责难的需要。

On the Basic Access to Measuring Penalty

Penalty could be measured through different accesses; therefore there have been many arguments among them. The most feasible access to measuring penalty includes three steps: confirming basic punishment, confirming the circumstances of sentencing and modifying the basic punishment. Basic punishment should be reached on the basis of positive methods. With confirming the circumstances of sentencing, the practice of the guide of measuring penalty in US could be taken into account to evaluate the circumstances of sentencing. The requirement of criminal accusing should be top-priority of modifying the basic punishment.