宽严相济刑事政策拾遗

刑事政策的存在有其必然性,宽与严是我国古代的刑事政策考虑的两极,时下我国的刑事政策渐趋宽缓,通过分析其产生原因和源流,在甄鉴刑法各学派的观点的基础上,可以认为从宽与从严的基准应是根据具体情势,在国家、社会和个人之间达到良好平衡。     

Sentencing Using Statistical Treatment Rules: What We Don’t Know Can Hurt Us

The existing literature seriously misinterprets the available evidence on the predictability of high rate criminal offending and thus the potential value of statistical treatment rules that impose stiffer punishments on offenders with higher predicted risk of recidivism. The misinterpretation results from the failure to take account of the fact that the data used in existing risk assessment exercises come from environments characterized by informal (and sometimes formal) attempts by judges and other actors to base penal treatments on expected recidivism. Findings of little or no predictive power for baseline covariates may simply indicate the efficient use of the available information. We lay out the problem in detail, provide examples from several literatures and then consider general solutions to the problem.

When Law and Order Returned to Denmark

The international trend toward increased use of punishment has been visible in Denmark since the early 1990s and has accelerated in the first years of the new millennium. As in other countries the trend cannot be explained by changes in crime or a political turn to the right. The increased use of punishment in (post) modern societies undoubtedly has a very complex background. The primary explanation put forth in this article is that it is based on a radical change in the human conditions and in the way people relate to their world. It is an existential revolution and, as such, it has emerged ‘from the bottom’ of society. This suggestion is not offered as an alternative to existing explanations that have been mainly dealing with factors and matters ‘from the top’ of society, such as changes in and of the political system (e.g. populism), the mass media (e.g. alarmism), the social organization of society (e.g. bureaucratization and/or industrialization), and globalization (e.g. imitation and/or internationalization of penal law). Rather, the hypothesis should be viewed as an important supplement to these existing theories and explanations.     

The Fall of the Finnish Prison Population

At the beginning of the 1950s, the prisoner rate in Finland was four times higher than in the other Nordic countries and among the highest in Europe. However, the steady decrease that started soon after the Second World War has continued, and in the beginning of the 1990s Finland reached the Nordic level. The paper discusses some backgound factors behind this ''success story''. In addition, the paper examines the relation of prisoner rates and recorded crime. A comparison between the Nordic countries reveals that the major crime trends have been practically similar despite striking differpractices ences in the use of imprisonment. As concluded in the paper, the decrease in the prison population is one of the major victories of Finnish crime policy.     

新刑诉下公诉工作司法能动性之发挥

在我国,能动司法与西方有所差别,其主要强调司法机关如何将法、情、理有机融合,慎重平衡各方主体利益。能动司法有利于化解社会矛盾,实现司法公正,同时也是对恢复性司法理念的回应。刑事和解、附条件不起诉、量刑建议,均为公诉工作发挥司法能动性提供了有效平台。同时,在公诉工作发挥司法能动性时,也存在办案检察官角色定位偏差等问题。要使公诉工作司法能动性得以有效发挥,上述问题亟待完善。     

Response to Tudor: Remorse-based Sentence Reductions in Theory and Practice

Steven Tudor defends the mitigation of criminal sentences in cases in which offenders are genuinely remorseful for their crimes. More than this, he takes the principle that such remorse-based sentence reductions are appropriate to be a ‘well-settled legal principle’—so well settled, in fact, that ‘it is among those deep-seated commitments which can serve to test general theories as much as they are tested by them’. However, his account of why remorse should reduce punishment is strongly philosophical in character. He sets to one side the many practical difficulties in implementing such reductions in the real world of criminal justice institutions so that he can focus on the question of whether a plausible account of sentencing can show that remorse should mitigate punishment. I contend that Tudor’s defense of such reductions is unpersuasive in certain respects. Yet even if it can be made more persuasive, I argue that the conditions that would have to be satisfied for remorse-based sentence reductions to be justifiably implemented are so many and various that they would likely exceed our abilities to responsibly grant them in real world legal contexts. I therefore claim that Tudor has failed to provide a defense of the ‘remorse principle’ that serves to explain or justify existing legal practices.

量刑程序研究

司法实践中严重的量刑失衡问题引起我们对建立量刑程序的重视，而根据我国的法律制度和体系，建立相对独立的量刑程序是最佳选择。我国未来的量刑程序应包括以下三个部分：案件分流制度，量刑程序诉讼构造，量刑说理及量刑评议。     

量刑阶段的证明责任与证明标准问题探讨

量刑与定罪有着不同的司法功能，在量刑阶段。寻求设计与之相适应的证明责任、证明标准以及证据规则等制度内容，是我国定罪量刑程序分离改革过程中的重要组成部分。在深化司法改革大背景下，结合新《刑事诉讼法》增加“排除合理怀疑”的证明基本要求、扩宽当事人参与法庭调查与辩论范围、建立量刑建议制度等内容，可以得出，在量刑阶段建立相对独立的证明标准、证明责任等制度，既有其必要性，也有其可行性。     

从“应得的惩罚”原则看我国的量刑原则

“应得的惩罚”的量刑原则主张刑罚的首要目的在于惩罚犯罪,实现刑罚的公正性、一致性,保护公民的安全。这种正视刑罚的惩罚功能、注重对社会和被害人保护的观念对于我国刑法理论界过分追求刑罚的功利主义,为刑罚加载诸多不能协调之目的,导致刑罚的本质功能不能很好实现的情形,应当是一种有益的反思。