刑法、刑事政策与社区矫正

刑法并非刑事政策的下位概念。就刑法而言,刑事政策仅仅是对它实践形态的某种体认;对刑事政策的过度强调,容易以行政指令式的普遍判断、统一判断,取代法官的个案判断、独立判断,从而不当削弱法律权威。宽严相济刑事政策乃是罪责原则与宽容精神的结合,实质上是国家权力惩罚技术的改进,本文对我国在这一刑事政策下出现的社区矫正将要发挥的作用持肯定态度。

Criminal Law, Criminal Policy and Community Correction

We should not consider criminal law to be subordinate to criminal policy. The latter reflects the former in practice to a certain degree. Overemphasis on criminal policy will lead to decreased legal authority, as administrative-directive-like common judgment and uniform judgment are likely to replace judges' individual case judgment and independent judgment. The policy of tempering justice with mercy is a combination of mercy and responsibility for a crime. The combination, in fact, is the improvement of the state punishment skills. In this article, the author expresses a favorable attitude toward the forthcoming effect of community correction against the background of the criminal policy in China.