酌定減輕處罰條款適用研究
發(fā)布時(shí)間：2019-04-01 21:04
【摘要】：依法治國的當(dāng)下,刑事司法中越來越多地出現(xiàn)剛性的條文與復(fù)雜的案情碰撞的局面,二者之間常常存在巨大的鴻溝,而且隨著時(shí)代的發(fā)展,這一鴻溝只會擴(kuò)大不會縮小。酌定減輕處罰條款恰可為裁判者架起銜接二者的“天橋”,對于實(shí)現(xiàn)罪刑均衡與量刑公正在理論價(jià)值上功不可沒。但是沿襲自上個(gè)世紀(jì)的酌定減輕處罰條款,盡管在世紀(jì)末修法之際的廢改浪潮中艱難地存活了下來,但其在新世紀(jì)的發(fā)展?fàn)顩r仍不容樂觀,實(shí)體條件的“寬松”與程序規(guī)定的“嚴(yán)苛”,使得該款動不得、用也難,漸有淪為“僵尸條款”之勢。本文從實(shí)證的視角出發(fā),借由對70起與酌定減輕處罰條款適用相關(guān)的案例進(jìn)行分析,歸納出酌定減輕處罰條款所面臨的困境,并嘗試以一種類型化的思路對其適用情形進(jìn)行歸納,在確定性與開放性中尋求平衡,以期使酌定減輕處罰條款在新的歷史語境下煥發(fā)出應(yīng)有的活力。文章第一部分對理論研究現(xiàn)狀進(jìn)行簡單梳理,將理論界所重點(diǎn)關(guān)注的問題進(jìn)行歸納:功能定位存爭議,適用條件不明晰,核準(zhǔn)程序過嚴(yán)苛,適用案例難尋覓。在對70起與酌定減輕處罰條款適用相關(guān)的案例細(xì)致研讀的基礎(chǔ)上,文章第二部分將司法實(shí)務(wù)中適用酌定減輕處罰條款時(shí)面臨的困境與存在的問題進(jìn)行明晰:適用規(guī)范性不足,法官說理不充分;適用案件范圍過窄,囿于幾類陳舊罪名;濫用誤用和當(dāng)用而不用現(xiàn)象共存;適用時(shí)沒有底線任性減輕。一面是實(shí)務(wù)需求膨脹,一面是理論研究熱情走低,酌定減輕處罰條款陷于尷尬境地的深層次原因在于:其一,理論上對該條款的正當(dāng)性仍存疑慮;其二,實(shí)務(wù)中因法律與解釋的缺位致使“特殊情況”難以認(rèn)定。正當(dāng)性關(guān)乎條款存活的命脈,因此文章第三部分則致力于解決酌定減輕處罰條款面臨的正當(dāng)性上的疑問。首先通過對衡平原則的理解、從罪刑法定原則實(shí)質(zhì)內(nèi)涵、罪刑相適應(yīng)與刑罰個(gè)別化等角度,重新釋明酌定減輕處罰條款與罪刑法定原則的關(guān)系;并分別從縱向——我國酌定減輕處罰條款的“前世今生”與橫向——域外刑法的典型規(guī)定兩個(gè)維度作為例證,輔證酌定減輕處罰條款存在的正當(dāng)性。其次通過論證酌定減輕處罰適用核準(zhǔn)權(quán)適當(dāng)下放的可能性與兩審終審制漸進(jìn)式的改革前景,從實(shí)體與程序兩端同時(shí)發(fā)力,對條款在適用中所面臨的層層復(fù)核與兩審終審刑事審級制度的沖突予以紓解。在承認(rèn)條款正當(dāng)性的前提下,第四部分首先回應(yīng)了條款的功能定位問題,隨著司法精細(xì)化的深入推進(jìn)以及法律監(jiān)督的日益完善,刑事司法將越來越依賴法官的自由裁量,作為戴枷的舞者,法官不能戴枷不舞,因此不必人為限定酌定減輕處罰條款的適用范圍,亦不必執(zhí)著于追問其究竟是“緊急出口”還是“常規(guī)通道”,而應(yīng)重點(diǎn)著眼于對法官適用理由的辨析。其次從解釋論的視角,根據(jù)舉重以明輕的解釋原理以及體系解釋使條文相協(xié)調(diào)的解釋方法,提出酌定減輕不可任性減輕的結(jié)論,減輕原則上以下一量刑幅度為限,也契合了最高人民法院刑事量刑標(biāo)準(zhǔn)的規(guī)定。而文章最后,也是本文最具現(xiàn)實(shí)意義的部分,是在現(xiàn)有法律規(guī)定的框架下,嘗試為法官適用酌定減輕處罰條款尋求一條最具操作性的通道,通過對以往適用案例的分析歸納,從規(guī)則明顯失衡、被害人因素介入、期待可能性、特情引誘等類型化的視角對“特殊情況”進(jìn)行建構(gòu),將該條款的適用納入到類型化、規(guī)范化的軌道上。
[Abstract]:The present day of the rule of law, the more and more rigid provisions in the criminal justice and the complex circumstances of the case, there is often a huge gap between them, and with the development of the times, the gap will only expand and will not be reduced. At the discretion of the penalty clause, the judge can set up the "Overpass" of the connection with the judge, and it can't be used to realize the balance of the crime and the justice of the sentencing. However, according to the discretionary mitigation provisions of the last century, despite the difficult survival in the wave of waste reform at the end of the end of the century, the development situation in the new century is still not optimistic, and the "loose" of the physical condition and the "draconian" prescribed by the procedure make the paragraph not move, It's hard to use, and it's becoming a "Zombie clause". In this paper, from the point of view of the positive analysis, the author analyzes the case of the application of the penalty clauses, and sums up the difficulties facing the penalty clauses, and tries to sum up the applicable cases in a type of thought. The balance is sought in certainty and openness, with a view to making the discretionary reduction of the provisions of the penalty in a new historical context. The first part of the article makes a brief analysis of the present situation of the theoretical research, and sums up the problems focused on the theoretical circle: the function positioning is controversial, the conditions of application are not clear, the approval procedure is too strict, and the application cases are difficult to find. On the basis of the careful study of 70 cases related to the application of the penalty clause, the second part of the article makes clear the difficulties and problems in the application of the penalty clause in the judicial practice: the application of the standard is not enough, and the judge's argument is not sufficient; The scope of the applicable cases is too narrow to be applicable to several types of old-fashioned charges; abuse and use are abused and used without the coexistence of phenomena; when applicable, there is no risk of the bottom line. One side is the expansion of the practical demand, and one side is the enthusiasm of the theoretical research, and the deep reason that the penalty clause is put into an awkward position is that: firstly, the validity of the article is still in doubt; secondly, the absence of the law and the explanation in the practice makes the "special case" difficult to determine. The third part of the article is to solve the question of the validity of the penalty clause. First of all, through the understanding of the principle of equity, the relationship between the penalty clauses and the legal principle of the crime and punishment should be reformulated from the aspects of the substantive connotation of the legal principle of the crime, the adaptation of the crime and the individualization of the penalty, and so on. In addition, the two dimensions of the "the life of the past life" and the transverse _ extraterritorial criminal law of the penalty clauses are taken as an example from the longitudinal _ China discretion, and the validity of the penalty clauses should be reduced as appropriate. Secondly, through the demonstration of the possibility of the appropriate decentralization of the application of the applicable nuclear power to the penalty and the gradual reform of the two-year-final system, the two ends of the entity and the procedure force the force, and the two-layer review of the provisions in the application and the conflict of the two-year-of-final-court-level system are solved. On the premise that the validity of the clause is recognized, the fourth part first responds to the functional positioning of the articles, and with the deepening of the judicial refinement and the perfection of the legal supervision, the criminal justice will depend more and more on the discretion of the judge as a dancer, The judge can't wear a non-dance, so it is not necessary to define the scope of application of the penalty clause to the discretion of the judge, nor to ask whether it is a "emergency exit" or a "conventional channel", but should focus on the analysis of the reasons for the application of the judge. Secondly, from the point of view of the explanation, according to the interpretation principle of weight lifting and the interpretation of the system explanation to harmonize the provisions, the author puts forward the conclusion that the non-willful mitigation can be reduced and the following sentence is reduced in principle. It also fits the provisions of the Supreme People's Court's criminal sentencing standards. In the end, the article is also the most practical part of the article, under the framework of the existing law, try to find a most operational channel for the judge to apply the discretionary mitigation penalty clause, The special case "is constructed according to the types of the factors such as the intervention of the victim, the possibility of expectation and the inducement of the special feeling, and the application of the provision is incorporated into the typed and standardized track.
【學(xué)位授予單位】：南京師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925.2
本文編號：2451908
[Abstract]:The present day of the rule of law, the more and more rigid provisions in the criminal justice and the complex circumstances of the case, there is often a huge gap between them, and with the development of the times, the gap will only expand and will not be reduced. At the discretion of the penalty clause, the judge can set up the "Overpass" of the connection with the judge, and it can't be used to realize the balance of the crime and the justice of the sentencing. However, according to the discretionary mitigation provisions of the last century, despite the difficult survival in the wave of waste reform at the end of the end of the century, the development situation in the new century is still not optimistic, and the "loose" of the physical condition and the "draconian" prescribed by the procedure make the paragraph not move, It's hard to use, and it's becoming a "Zombie clause". In this paper, from the point of view of the positive analysis, the author analyzes the case of the application of the penalty clauses, and sums up the difficulties facing the penalty clauses, and tries to sum up the applicable cases in a type of thought. The balance is sought in certainty and openness, with a view to making the discretionary reduction of the provisions of the penalty in a new historical context. The first part of the article makes a brief analysis of the present situation of the theoretical research, and sums up the problems focused on the theoretical circle: the function positioning is controversial, the conditions of application are not clear, the approval procedure is too strict, and the application cases are difficult to find. On the basis of the careful study of 70 cases related to the application of the penalty clause, the second part of the article makes clear the difficulties and problems in the application of the penalty clause in the judicial practice: the application of the standard is not enough, and the judge's argument is not sufficient; The scope of the applicable cases is too narrow to be applicable to several types of old-fashioned charges; abuse and use are abused and used without the coexistence of phenomena; when applicable, there is no risk of the bottom line. One side is the expansion of the practical demand, and one side is the enthusiasm of the theoretical research, and the deep reason that the penalty clause is put into an awkward position is that: firstly, the validity of the article is still in doubt; secondly, the absence of the law and the explanation in the practice makes the "special case" difficult to determine. The third part of the article is to solve the question of the validity of the penalty clause. First of all, through the understanding of the principle of equity, the relationship between the penalty clauses and the legal principle of the crime and punishment should be reformulated from the aspects of the substantive connotation of the legal principle of the crime, the adaptation of the crime and the individualization of the penalty, and so on. In addition, the two dimensions of the "the life of the past life" and the transverse _ extraterritorial criminal law of the penalty clauses are taken as an example from the longitudinal _ China discretion, and the validity of the penalty clauses should be reduced as appropriate. Secondly, through the demonstration of the possibility of the appropriate decentralization of the application of the applicable nuclear power to the penalty and the gradual reform of the two-year-final system, the two ends of the entity and the procedure force the force, and the two-layer review of the provisions in the application and the conflict of the two-year-of-final-court-level system are solved. On the premise that the validity of the clause is recognized, the fourth part first responds to the functional positioning of the articles, and with the deepening of the judicial refinement and the perfection of the legal supervision, the criminal justice will depend more and more on the discretion of the judge as a dancer, The judge can't wear a non-dance, so it is not necessary to define the scope of application of the penalty clause to the discretion of the judge, nor to ask whether it is a "emergency exit" or a "conventional channel", but should focus on the analysis of the reasons for the application of the judge. Secondly, from the point of view of the explanation, according to the interpretation principle of weight lifting and the interpretation of the system explanation to harmonize the provisions, the author puts forward the conclusion that the non-willful mitigation can be reduced and the following sentence is reduced in principle. It also fits the provisions of the Supreme People's Court's criminal sentencing standards. In the end, the article is also the most practical part of the article, under the framework of the existing law, try to find a most operational channel for the judge to apply the discretionary mitigation penalty clause, The special case "is constructed according to the types of the factors such as the intervention of the victim, the possibility of expectation and the inducement of the special feeling, and the application of the provision is incorporated into the typed and standardized track.
【學(xué)位授予單位】：南京師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925.2
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