规制量刑权的路径探析

量刑权属于德沃金言下的弱自由裁量权,具有实现个案事实与刑法规范无缝对接、彰显社会正义与保障人权的价值。量刑虽是一项具有浓郁能动司法色彩的活动,但量刑权的行使却不能简单地基于正当、合理的名义。而是首先应遵循一套实体规则,这个实体规则以责任刑法为价值基础,背靠法律人经验,思维步骤符合认知规律且历经实践检验;同时为确保实体规则得以一体遵循,还须设置和运行量刑程序,最终促使法官判罚说理,提高司法信度和效度。

Exploration on the Route of Regulating Sentencing Discretion

Sentencing discretion pertains to Dworkin＇ s weak discretion. It aims at achieving the purposes of social basic security and human rights protection by seamlessly connecting the facts of the cases with criminal rules. Although sentencing is a field which has a strong flavor of judicial activism, the sentencing discretion ob viously can not be simply based on the name of rightfulness and justifiability. Firstly, it should abide by a set of substantive rules which use the criminal responsibility as the value basis, and depend on lawyers＇ experience, thinking steps conform to cognitive rules and examined by practice. At the same time, in order to ensure the substantive rules being wholly followed, the sentencing process must be set up and operated, which will eventu ally prompt the judge to trial out of the discretion and rebuild the judicial reliability and validity.