死缓期间重新计算制度研究

死缓期间重新计算作为《刑法修正案(九)》的一大制度创新,具有重要的理论价值和实践价值。重新计算死缓期间并不是刑法注意规定,而是一项法律拟制,系将数罪并罚后的死缓判决拟制为我国《刑法》第51条中的新判决。死缓期间重新计算适用条件"情节不恶劣的故意犯罪"可以从其反面"情节恶劣"界定,采用刚性和柔性方式加以把握,即变更执行死刑必须符合因故意犯罪被判处5年有期徒刑以上刑罚之刚性标准,以及该故意犯罪能够表明犯罪人抗拒改造、人身危险性大之柔性判断。重新计算的死缓期间从数罪并罚后的死缓判决确定之日起计算,原判死缓期间在故意犯罪被追诉时仍需继续。

Dogmatics Research on Recalculating the Period of Death Penalty with Probation

As a great system innovation in the Ninth Amendment to the Criminal Law,recalculating the period of death penalty with probation has important theoretical value and practical value. Recalculating the period of death penalty with probation isnt a provision of attention but a legal fiction,which drafts a sentence of the death penalty with probation after combined punishment for several crimes as a new sentence in Article 51 of the Criminal Law. The application condition of recalculating the period of death penalty with probation "intentional crime with no flagrant circumstances"may be defined from "flagrant circumstances"and understood through rigid and flexible modes. That is to say,the execution of death penalty must meet the rigid standard of punishment sentenced to more than five years’ imprisonment for intentional crime,and the flexible judgment that the intentional crime can show that the offender resists transformation and has great personal dangerousness. Starting date of recalculating the period should coincide with the date when the verdict of the death penalty with probation comes into force. It is necessary to continue the period of death penalty with probation when the intentional crime is prosecuted.