纳什均衡视角下的规范量刑与自由裁量

规范量刑和自由裁量是刑法理论中一对相互矛盾的范畴,处在此消彼长不断博弈的状态。规范量刑和自由裁量各自的利弊决定两者在博弈中只有构成均衡——纳什均衡,才能相互制约并发挥最大的效用,从而使得人们没有违反量刑规则的激励和动机。同时,随着社会的不断发展变化,这种均衡也是个局部均衡、动态均衡的过程。必须不断进行调整。

Normalized Sentencing and Free Discretion from the Perspective of Nash Equilibrium

Normalized sentencing and free discretion are a pair of contradictory categories in the theory of criminal law. They are in the gambling situation, as one falls, another rises. Normalized sentencing and free discretion have their own advantages and disadvantages, which determine they must keep equilibrium in the game Nash Equilibrium. In this way, they can confine each other and play their effectiveness so that people will have no enouragement and motivation to violate the measurements of penalty. Meanwhile, with the development of the society, this kind of equilibrium is only the process of partial equilibrium and dynamic equilibrium, it needs adaptation constantly.