贪利性犯罪死刑正当性的犯罪学追问

贪利性犯罪的死刑是现阶段我国在死刑控制问题上面临的一个突出问题。目前,理论上有关贪利性犯罪死刑正当性的思考,大多局限于法理或伦理上的一般性思辨,而缺乏从事实层面对“为什么对贪利性犯罪不应当配置死刑”这一核心问题的深入追问。基于死刑与贪利性犯罪的社会危害性特点具有不相容性、死刑与贪利性犯罪的原因具有不匹配性和死刑于贪利性犯罪无任何积极功效的分析,利用死刑与贪利性犯罪作斗争,在反犯罪策略上是一种缺乏事实根据的非理性选择。为此,在立法尚未改变之前,理性控制贪利性犯罪死刑的司法适用,是时代赋予司法者的政治和道义责任。

Doubt About Treating Unlawful Procurement of Benefit as a Capital Offense:In Perspective of Criminology

Whether imposing death penalty on those unlawfully procuring benefit becomes a prominent issue in China since this state is trying her best to restrain capital punishment. Unfortunately, the theoretical debate of justification of death penalty for unlawful procurement of benefit still remains on philosophical or ethical level and no factual examination has been conducted as to the central problem of “why it cannot be a capital offense.” Based on the imcompatiblility between death penalty and the crime’s social harm, inconsistency between death penalty and the criminal intent, and no positive effect of death penalty on the offense, one must acknowledge that employing death as a weapon to fight against unlawful procurement benefit is by no means a rational alternative. As such, prior to the amendment of law, it is a political and ethical duty delegated by the era to the judiciary to refrain from imposition of death penalty on those unlawfully procuring benefit