罪刑均衡的司法考察

司法中的罪刑均衡原则通过责任要素的介入将报应主义下的罪刑均衡与目的主义下的刑罚个别化原则结合起来 ,表现为责刑均衡 ,实现了量刑原则由一元向二元的转变。在罪刑均衡原则的实践过程中 ,定罪与量刑是两个密切相关的范畴。准确定罪始终是公正量刑的前提 ,但量刑对定罪亦有不可忽视的反作用。当前 ,我国司法实践中存在着量刑趋重与量刑偏差较大等问题 ,制约着罪刑均衡原则的充分实现。对量刑偏差问题 ,比较现实的解决方案是将各地量刑经验汇总至最高人民法院 ,在学者的参与下确立起个罪的量刑基准 ,并逐步建立起适度的遵循先例制度 ,以实现量刑的统一。至于量刑趋重问题 ,它是我国刑法文化形态的外在表现 ,难以在短期内得到改观 ,但司法依旧可以有所作为。

Judicial Review of the Balance between Crime and Punishment

It shows the balance between responsibility and punishment and makes the principle of sentencing discretion transform from mono-element to duality. In the process of practicing the principle of balance between crime and punishment, conviction and sentencing discretion belong to different categories. Precise conviction has always been the premise of fair sentencing discretion, but counter effect of sentencing on conviction shall not be ignored. At present, there are problems such as sentencing tending to be severe, and the deviations in sentencing discretion becoming serious, which has hindered the full realization of the principle of balance between crime and punishment. As to the problem of deviation in sentencing discretion, the practical way to settle it is to gather the experience in sentencing discretion all over the country and report them to the Supreme Court. With the participation of scholars, the benchmark of sentencing discretion of individual crime shall be determined and the institution of observing the precedents to an appropriate degree shall be gradually established to unify sentencing discretions. As far as the problem of sentencing discretion tending to be severe is concerned, it is the exterior manifestation of the culture modality of criminal law of China, which is hard to be altered within a short period of time. But judicature still works.