量刑与定罪互动论:为了量刑公正可变换罪名

现行刑法理论中定罪与量刑的关系被扭曲了,刑法理论把准确定罪置于至高无上的地位,司法机关把大量精力耗费于准确判断罪名,定罪决定量刑、量刑不可能影响罪名成为刑法公理。但是,判断罪名意义上的定罪,并非刑法的目的;对被告人和社会最有意义的是量刑,判断罪名只是为公正量刑服务的;因此,如果常规判断的罪名会使量刑失当,就可以为了公正量刑而适度变换罪名。

Interaction of Sentencing and Conviction: Charges Changed for Fair Sentencing

The relationship between conviction and sentencing has been incorrectly determined and all the followings seem to have become maxims of criminal law:exact conviction is deemed supremacy in criminal law theory;the judiciary spends much on accurate decision of crimes;sentencing is decided by conviction,and sentencing can never affect conviction.However,conviction in the sense of finding out of what offense the accused is guilty is by no means the real purpose of criminal law.What is of greatest significance to the accused and society is sentencing and the sole aim of conviction is to impose punishment fairly.Therefore,whether a regular conviction leads to unfair sentencing,the charges against the accused may be changed for the purpose of fair sentencing.