对“在法定刑以下判处刑罚”的解读与反思

对"法定最低刑"的理解,应当采取"构成类型说",但该说也存在疑问。减轻处罚不以一格为限,减轻处罚不能判处法定最低刑,不能减到免除处罚,能够变更刑种,可以减至分则条文没有规定的刑期或刑种。我国刑法对于"如何减轻"没有进行规定,属于立法缺陷,应予以完善。

Interpreting and Rethinking on Sentence a Punishment less than the Prescribed Punishment

To interpret the minimum statute penalty,we should adopt the constitute pattern theory,of which there still has doubts.Mitigating a punishment doesn't be limited to reducing one space,but can't be reduced to the minimum statute penalty or exemp-tion from penalty.Mitigating a punishment can change the penalty categories and can even be reduced to the penalty term and the penalty categories which are not prescribed by the criminal law.It is a legislative defect that the Chinese criminal law doesn't prescribe ...