我國(guó)刑事判決書量刑說(shuō)理問(wèn)題研究
發(fā)布時(shí)間：2018-07-15 10:49
【摘要】： 有數(shù)據(jù)顯示,2003-2007年之間全國(guó)法院宣告無(wú)罪判決比例不到0.5%,可以說(shuō)中國(guó)刑事審判的核心問(wèn)題應(yīng)當(dāng)是量刑問(wèn)題。但是在我國(guó)目前刑事訴訟程序中,定罪量刑嚴(yán)重失衡——重定罪輕量刑,訴訟程序中的定罪量刑失衡反映在刑事裁判書中,便是量刑說(shuō)理不足。近幾年司法實(shí)務(wù)中出現(xiàn)了大量社會(huì)反響重大,量刑結(jié)論爭(zhēng)議極大的刑事案件。這些案件的一個(gè)共同點(diǎn)是,公眾在判決書中難以發(fā)現(xiàn)法官對(duì)其如何認(rèn)定量刑情節(jié)和為何作此判決的解釋,判決書中武斷的量刑結(jié)論難以使各判決書受眾信服,司法的權(quán)威也因此備受質(zhì)疑。本文通過(guò)對(duì)量刑說(shuō)理缺陷的梳理,擬提出一系列促進(jìn)量刑說(shuō)理的近期對(duì)策和遠(yuǎn)期長(zhǎng)效制度設(shè)想,以期為完善量刑說(shuō)理提供一些可供選擇的思路。 本文正文約三萬(wàn)字,全文共分五個(gè)部分,下面簡(jiǎn)單概括一下這五個(gè)部分的內(nèi)容。 第一部分概述量刑說(shuō)理,包括量刑說(shuō)理的基本概念、量刑說(shuō)理的要素、量刑說(shuō)理的應(yīng)達(dá)標(biāo)準(zhǔn)。量刑說(shuō)理的概念有廣義和狹義之分,本文主要是針對(duì)狹義概念展開論述。狹義的量刑說(shuō)理是指為了證明量刑判決的正當(dāng)性,量刑說(shuō)理主體在判決書中就被告人的量刑問(wèn)題,依據(jù)法律文本和原則、法理和情理對(duì)控辯雙方的量刑意見、量刑事實(shí)認(rèn)定以及法律適用等問(wèn)題進(jìn)行必要解釋的行為。量刑說(shuō)理包括四大要素:量刑說(shuō)理內(nèi)容、主體、路徑和載體,這是筆者進(jìn)行分析問(wèn)題和解決問(wèn)題的切入點(diǎn)。量刑說(shuō)理應(yīng)達(dá)合法性、合理性和客觀性的標(biāo)準(zhǔn),這也是完善量刑說(shuō)理制度的宏觀指標(biāo)。 第二部分提出量刑說(shuō)理的現(xiàn)存問(wèn)題。先是通過(guò)一些實(shí)證數(shù)據(jù)對(duì)量刑說(shuō)理存在的問(wèn)題進(jìn)行簡(jiǎn)單說(shuō)明,其次再細(xì)致地分析了目前我國(guó)刑事判決書量刑存在的一系列問(wèn)題,歸納而言表現(xiàn)在以下幾個(gè)方面:重定罪說(shuō)理,輕量刑說(shuō)理;重主刑、實(shí)刑說(shuō)理,輕附加刑、緩刑說(shuō)理;重法定情節(jié)說(shuō)理,輕酌定情節(jié)說(shuō)理;重罪名選擇理由,輕法定刑幅度選擇理由;重事實(shí)列舉,輕證據(jù)分析;重控方意見說(shuō)理,輕辯方意見評(píng)析;重格式化說(shuō)理,輕個(gè)性化論證。 第三部分分析了量刑說(shuō)理存在問(wèn)題的原因。定罪中心主義的庭審模式、審判權(quán)力行政化運(yùn)行方式、相關(guān)職業(yè)教育缺失和判決書結(jié)構(gòu)“八股”式是導(dǎo)致量刑說(shuō)理難的深層次制度因素。我國(guó)傳統(tǒng)訴訟文化中的司法行政化和個(gè)人權(quán)利概念缺失是導(dǎo)致量刑說(shuō)理缺乏觀念支撐的歷史文化因素。此外,在司法實(shí)務(wù)中法官工作量過(guò)大、法官自身素質(zhì)不高等也是導(dǎo)致量刑理由缺乏說(shuō)服力的現(xiàn)實(shí)原因。 第四部分強(qiáng)調(diào)了量刑說(shuō)理的重要性。量刑說(shuō)理的作用主要體現(xiàn)在以下幾個(gè)方面:確保量刑準(zhǔn)確,貫徹罪行相適應(yīng)原則;有利于實(shí)現(xiàn)量刑公開,增強(qiáng)裁判公信力;便于控辯雙方尋求救濟(jì)和二審法院審查;便于統(tǒng)一法律司法解釋,推動(dòng)個(gè)案司法解釋技術(shù)的發(fā)展。 第五部分提出了構(gòu)建量刑說(shuō)理制度的對(duì)策。文章通過(guò)對(duì)目前有關(guān)于量刑說(shuō)理方面改革環(huán)境的考察,分析了建立量刑說(shuō)理制度的有利外部司法改革環(huán)境,同時(shí)也分析了我國(guó)刑事訴訟制度中將長(zhǎng)存的不利因素,辯證地提出了漸進(jìn)的改革模式,即分兩步走策略。短期對(duì)策主要是針對(duì)判決書本身的技術(shù)改良,包括優(yōu)化判決書結(jié)構(gòu)、豐富內(nèi)容、深化分析論證、公開量刑理由。從遠(yuǎn)期來(lái)看,要建立健全相關(guān)制度,包括優(yōu)化相對(duì)獨(dú)立的量刑程序、構(gòu)建量刑證據(jù)制度、完善量刑指導(dǎo)制度和審判權(quán)運(yùn)作去行政化這四個(gè)方面的內(nèi)容。
[Abstract]:Data show that the proportion of the national court of innocence between 2003-2007 years is less than 0.5%. It can be said that the core issue of the criminal trial in China should be the question of sentencing. However, in the current criminal procedure of China, the serious imbalances in conviction and sentencing are seriously imbalanced, and the imbalances in conviction and sentencing in the sequence of litigation are reflected in the criminal judgment. In recent years, there have been a large number of criminal cases with great social repercussions and great controversies on sentencing conclusions. One common point in these cases is that it is difficult for the public to find out how the judge determines the circumstances of sentencing and the explanation for the decision in the judgment, and the arbitrary conclusion of sentencing is difficult in the judgment. In order to convince the audience of the judgment books, the authority of the judiciary has also been questioned. By combing the defects of sentencing reasoning, this paper proposes a series of short-term countermeasures and long-term long-term system ideas to promote sentencing, in order to provide some options for perfecting the sentencing reasoning.
The text is about thirty thousand words. The full text is divided into five parts. The following five parts are briefly summarized.
The first part outlines the concept of sentencing, including the basic concept of sentencing reasoning, the elements of sentencing reasoning, and the standard of sentencing reasoning. The concept of sentencing reasoning is divided into a broad and narrow sense. This article mainly deals with the narrow sense. The narrow sense of sentencing refers to the justification of the sentencing judgment, the subject of sentencing reasoning in the judgment. In the book, the question of the sentencing of the defendant, according to the text and principle of the law, the legal principle and the reason, the punishment of the two parties' sentencing opinions, the sentencing fact identification and the application of the law. The sentence of sentencing includes four main elements: the content of sentencing reasoning, the subject, the path and the carrier, this is the author's analysis and solving the problem Sentencing reasoning should reach the criteria of legality, rationality and objectivity. This is also a macroscopic index for improving sentencing reasoning system.
The second part puts forward the existing problems of sentencing reasoning. First, it gives a simple explanation of the existing problems of sentencing reasoning through some empirical data. Secondly, it analyzes a series of problems existing in the criminal sentencing of our country at present, and summarizes the following aspects in the following aspects: the principle of conviction, the light of punishment, the main punishment, and the real punishment. Reasoning, attaching to punishment, probation, rationalization of legal circumstances, light discretion of the plot, reason for the choice of the name of a serious crime, the reason for the choice of the extent of the legal punishment, the fact that the facts are enumerated, the light evidence analysis, the criticism of the accuser, the comment and analysis of the light defense, the reformatting and the light sexual demonstration.
The third part analyzes the reasons for the existence of the sentencing principle. The court trial mode of the conviction centralism, the administrative operation mode of the trial power, the lack of related vocational education and the "eight shares" of the sentence structure are the deep institutional factors that lead to the difficulty of sentencing. Loss is a historical and cultural factor that leads to the lack of concept of sentencing reasoning. In addition, in the judicial practice, the judge's workload is too large and the judge's own quality is also the cause of the lack of persuasiveness of the reason for sentencing.
The fourth part emphasizes the importance of sentencing reasoning. The role of sentencing reasoning is mainly embodied in the following aspects: to ensure the accuracy of the sentencing and to carry out the principles of the adaptation of crimes; to achieve public sentencing and to enhance the credibility of the referees; to facilitate the two sides to seek relief and the review of the court of the second instance; to facilitate the unification of legal judicial interpretation and to promote case judicature Explain the development of technology.
The fifth part puts forward the Countermeasures for the construction of the system of sentencing reasoning. Through the investigation of the reform environment in the aspect of sentencing reasoning, the article analyzes the favorable external judicial reform environment for establishing the system of sentencing reasoning, and analyses the disadvantages of the long existence in the criminal procedure system in China, and dialectically puts forward the progressive reform model. The short term countermeasures mainly aim at the technical improvement of the verdict itself, including optimizing the structure of the judgment book, enriching the content, deepening the analysis and demonstration, and the public sentencing reasons. In the long term, we should establish and improve the relevant system, including the optimization of relatively independent sentencing procedures, the construction of the sentencing evidence system, and the improvement of the sentencing guidance system and the improvement of the sentencing guidance system. The four aspects of the operation of jurisdiction are to be administrative.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D925.2
本文編號(hào)：2123816
[Abstract]:Data show that the proportion of the national court of innocence between 2003-2007 years is less than 0.5%. It can be said that the core issue of the criminal trial in China should be the question of sentencing. However, in the current criminal procedure of China, the serious imbalances in conviction and sentencing are seriously imbalanced, and the imbalances in conviction and sentencing in the sequence of litigation are reflected in the criminal judgment. In recent years, there have been a large number of criminal cases with great social repercussions and great controversies on sentencing conclusions. One common point in these cases is that it is difficult for the public to find out how the judge determines the circumstances of sentencing and the explanation for the decision in the judgment, and the arbitrary conclusion of sentencing is difficult in the judgment. In order to convince the audience of the judgment books, the authority of the judiciary has also been questioned. By combing the defects of sentencing reasoning, this paper proposes a series of short-term countermeasures and long-term long-term system ideas to promote sentencing, in order to provide some options for perfecting the sentencing reasoning.
The text is about thirty thousand words. The full text is divided into five parts. The following five parts are briefly summarized.
The first part outlines the concept of sentencing, including the basic concept of sentencing reasoning, the elements of sentencing reasoning, and the standard of sentencing reasoning. The concept of sentencing reasoning is divided into a broad and narrow sense. This article mainly deals with the narrow sense. The narrow sense of sentencing refers to the justification of the sentencing judgment, the subject of sentencing reasoning in the judgment. In the book, the question of the sentencing of the defendant, according to the text and principle of the law, the legal principle and the reason, the punishment of the two parties' sentencing opinions, the sentencing fact identification and the application of the law. The sentence of sentencing includes four main elements: the content of sentencing reasoning, the subject, the path and the carrier, this is the author's analysis and solving the problem Sentencing reasoning should reach the criteria of legality, rationality and objectivity. This is also a macroscopic index for improving sentencing reasoning system.
The second part puts forward the existing problems of sentencing reasoning. First, it gives a simple explanation of the existing problems of sentencing reasoning through some empirical data. Secondly, it analyzes a series of problems existing in the criminal sentencing of our country at present, and summarizes the following aspects in the following aspects: the principle of conviction, the light of punishment, the main punishment, and the real punishment. Reasoning, attaching to punishment, probation, rationalization of legal circumstances, light discretion of the plot, reason for the choice of the name of a serious crime, the reason for the choice of the extent of the legal punishment, the fact that the facts are enumerated, the light evidence analysis, the criticism of the accuser, the comment and analysis of the light defense, the reformatting and the light sexual demonstration.
The third part analyzes the reasons for the existence of the sentencing principle. The court trial mode of the conviction centralism, the administrative operation mode of the trial power, the lack of related vocational education and the "eight shares" of the sentence structure are the deep institutional factors that lead to the difficulty of sentencing. Loss is a historical and cultural factor that leads to the lack of concept of sentencing reasoning. In addition, in the judicial practice, the judge's workload is too large and the judge's own quality is also the cause of the lack of persuasiveness of the reason for sentencing.
The fourth part emphasizes the importance of sentencing reasoning. The role of sentencing reasoning is mainly embodied in the following aspects: to ensure the accuracy of the sentencing and to carry out the principles of the adaptation of crimes; to achieve public sentencing and to enhance the credibility of the referees; to facilitate the two sides to seek relief and the review of the court of the second instance; to facilitate the unification of legal judicial interpretation and to promote case judicature Explain the development of technology.
The fifth part puts forward the Countermeasures for the construction of the system of sentencing reasoning. Through the investigation of the reform environment in the aspect of sentencing reasoning, the article analyzes the favorable external judicial reform environment for establishing the system of sentencing reasoning, and analyses the disadvantages of the long existence in the criminal procedure system in China, and dialectically puts forward the progressive reform model. The short term countermeasures mainly aim at the technical improvement of the verdict itself, including optimizing the structure of the judgment book, enriching the content, deepening the analysis and demonstration, and the public sentencing reasons. In the long term, we should establish and improve the relevant system, including the optimization of relatively independent sentencing procedures, the construction of the sentencing evidence system, and the improvement of the sentencing guidance system and the improvement of the sentencing guidance system. The four aspects of the operation of jurisdiction are to be administrative.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D925.2
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 馬浩潔;論法官量刑自由裁量權(quán)的程序規(guī)制[D];遼寧大學(xué);2011年
，本文編號(hào)：2123816
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