酌定量刑情节若干问题研究

酌定量刑情节具有刑法上之依据,但不具备内容的法定性,应将酌定量刑情节内容予以法定化。民愤与量刑依据存在偏差,不应作为酌定量刑情节,但是其对刑罚裁量能够产生特定影响;司法实践中“以强凌弱”的情况体现了更强的社会危害性和人身危险性,应当上升为法定量刑情节。

Research on Some Problems of Discretion in Light of Penalty Circumstance

Discretion in light of penalty circumstance has an important function during the process of measurement of penalty,but in theory it cannot be gotten the enough recognition.This article considers that discretion in light of penalty circumstance has the basis of criminal law,but doesn't have legal nature of content,and also considers that the content of discretion in light of penalty circumstance should be regulated in the law.Furthermore,popular indignation has warp from measurement of penalty basis,so popular indignation should not as the discretion in light of penalty circumstance,but it has certain influence to measurement of penalty.The circumstance of "the strong bully the weak" in practice embodies more social harmfulness and personal fatalness,it is must as the legal circumstance to measurement of penalty.