重刑轻刑研究刑罚轻重从定性到定量的推进 中英文摘要 本文关键词：刑罚，轻重，定性，定量，中英文
重刑轻刑研究刑罚轻重从定性到定量的推进 中英文摘要 本文简介：论文摘要：法定刑的交集，是指法定刑内部同一档次的诸刑种之间，或者法定刑内部的刑种与法定刑外部的刑罚执行制度之间，必定存在轻重区别，但这些区别又不像阶梯型刑种排列那样轻重分明的一种现象。刑罚之间的交集是客观存在的普遍现象，隐藏在刑种交集背后的轻重难辨也是无法回避的普遍难题。法官在法定刑的范围内斟酌判罚
重刑轻刑研究刑罚轻重从定性到定量的推进 中英文摘要 本文内容：
本文第二章是对拘役和有期徒刑的刑罚量比较，笔者通过对法条的归纳，着重比较了拘役与有期徒刑在刑罚量上最主要的四个差别因素：服刑场所、强制劳动、奖惩待遇、累犯构成可能性。通过笔者对几个看守所的实地考察数据结合法条规定比较发现，在拘役的规定中“就近执行”、“回家权”等有特别规定的因素，在实践中却基本没有落实；而拘役在强制劳动中的劳动条件、劳动工种、劳动时间以及累犯构成可能性方面的确较有期徒刑轻缓。此外，笔者还结合拘役与有期徒刑的服刑待遇与监舍条件等做了考察与比较，最终得出拘役较有期徒刑轻的结论。这一结论与刑法第 44 条先行羁押中拘役与有期徒刑的折抵比例相悖。而带入各种考量因素后，笔者初步估量而得拘役的刑罚量应当略小于有期徒刑。
形式。原本在刑法分则中规定的是无期徒刑与死刑的“交集”形式，生命的价值远大于自由，因此从轻重角度来说，死刑肯定是远远重于无期徒刑的。这个是显而易见，无需论证的，皮之不存毛将焉附。但死刑除了立即执行外还有缓期两年执行这个执行方式。而死缓考验期满后是否会执行死刑又是不确定的。因此准确地说应该是死刑立即执行肯定远远重于无期徒刑。那么死缓在刑罚量坐标上的位置就显得非常暧昧了。死缓即便不是一个法定刑种，都不可否认死缓有独特的刑罚量。且可以确定的是死缓的刑罚量是界于无期徒刑与死刑之间的，但它在刑罚标尺上的刻度究竟是靠近无期徒刑还是靠近死刑立即执行，就是需要经过仔细考察后才能得出的结论。笔者将死缓与无期徒刑的刑罚量区别因素分为两类：一类是只有死缓有，而无期徒刑没有的规定，比如无期徒刑没有限制减刑的规定，也没有设置死缓考验期；第二类就是死缓与无期徒刑均有规定，但规定的内容却不同，比如前文所述的减刑与重大立功规定。经过考察论证，死缓在改判无期后的执行、重大立功、对累犯以及八类严重暴力犯罪限制减刑、死缓考验期这四个方面均有差别，但差别却非常有限。笔者对死缓的各种情形分别逐一讨论刑罚量，发现排除死缓考验期内的威慑因素不论，不同情况下的死缓之间实际服刑差距可达 10 年或更长，而死缓作为一个整体与无期徒刑之间的刑罚量差距可能仅为 2年死缓考验期的刑罚量。与其说《刑法修正案（八）》拉大了死缓与无期徒刑之间的刑罚量差距，不如说其拉大了不同性质的死缓服刑罪犯之间的刑罚量差距。
第四章是罚金与没收财产的刑罚量比较。笔者一是对两者的适用形式进行比较，发现没收财产在适用时，都必须与主刑一起适用，且是与较重的主刑一起适用。而罚金不仅可以并处还可以单处。单处罚金的情形一般出现在情节较轻的法定刑档次内，最多也是与 5 年有期徒刑选择适用。因此相比于罚金，没收财产一般只用于比较严重的犯罪中。但这一现象本身却并不能得出同为附加刑，罚金比没收财产要轻的结论。二是对两者的对象与数额进行比较，从字面理解似乎罚金以罪犯向国家缴纳一定金钱为对象，而没收财产既可以以金钱为对象又可以以财产性物品为对象。但实际上在执行的时候，若被判处没收财产的罪犯被执行的是具体财物或知识产权等财产性权利，也是需要将拍卖等程序转换为金钱后才能缴纳国库。而对于被判处罚金的罪犯，也可以对其财物或知识产权、股权等进行拍卖转为金钱后缴纳国库。因此两者对象上并无区别。在数额确定方面，刑法分则并没有规定罚金有明确的上限，尤其是当罪犯遇到“天价”罚金的时候，实际履行就比较困难。这也是导致罚金与没收财产执行率低的主要原因。三是对两者执行方式进行比较。罚金的执行期限也是无限长的，甚至可以与罪犯的余生同期。
第五章是管制与剥夺政治权利的刑罚量比较。这组“交集”属于主刑与附加刑之间的对比，同时也是自由刑与资格性之间的“交集”。经过对管制与剥夺政治权利的考察比对之后，笔者发现剥夺政治权利的单处适用范围远大于附加适用的范围。其单独适用的比例丝毫不亚于主刑中管制与拘役的适用范围。单独适用剥夺政治权利的描述与其他主刑也并无差别，且最高可以与 5 年有期徒刑选择适用。虽然刑法总则规定了剥夺政治权利作为附加刑的形式，但分则中的具体规定完全如同主刑的适用，这就让剥夺政治权利与管制有了一个更具可比性的平台。
[关键词] 刑罚交集 刑罚量 轻重比较 刑罚执行 刑罚阶尺
Intersection of legal punishment kinds is a phenomenon that exists between thelegal punishments or between the kinds of punishments and penalties enforcementwithin the same grade of legal punishments: they must have severity of distinctions,but these differences are not so obvious like a ladder-type punishment phenomenonthat can be told at one glance. Intersection of legal punishment kinds is a commonphenomenon. The severity of one punishment hidden in the back of the intersectiondifficile is a universal problem can not be avoided. Judges discretion within the scopeof legal penalties, they need to reflect the severity of the punished deeds, yet judgesdo not know the severity of each punishment is bound to more or less mix withrandomness and blindness. This article is committed to crack the Ingmar of “theintersection of legal punishment kinds”, so as to provide the possible rigorouscredential basis to judges. It should be emphasized that the above-mentioned“intersection of legal punishment kinds” phenomenon, not only exist in all kinds ofpunishment, but also exists in the penalty enforcement system. Since “intersection oflegal punishment kinds” is an objective universal phenomenon, and the judge mustconsider the penalty to be faced with “intersection” problems, also take into accountthe judge must make a choice in the intersection, these events show that research onthe intersection of the phenomenon, not only has the theoretical value to fill the gaps,but also has great significance of being judicial practice guidance. This article takesthe “intersection of legal punishment kinds” as a breakthrough in the penaltycomparison, find the difference between punishment and trying to determine theimpact of these differences in the severity of the penalty factors, and exemplified indetail and analyze differences in the severity of these penalties as comprehensive aspossible . This is how the basic starting point of this article coming out.
Frankly, by far judges seems did not have access to adequate and reasonablebasis, even might be with varying degrees of blindness and randomness, when theyfaced with choices of punishments. Usually, judges are aware of the severity ofpunishments varies, but do not know where the differences of severity presents, orhow the severity of punishments differs. The author believes that the judge in makingthe penalty, just have some "feelings" of the difference of punishment is far notenough. Moreover, when judges are in face of some certain punishment intersectiondifficile, even a slightest "feeling" said above would not been found. If the penaltiesare really not comparable, then it is impossible for the legislators to make the judgesselect a given punishment in the specific provisions of criminal law. Since thelegislators intend to set up such a punishment intersection difficile provision, thesepenalties are deemed to have some commonalities, even the severity of differencesthat may exist between those two punishments is very small. At least in the differencebetween the two punishments should also be summarized which is appropriatepenalties to the offenders in a sentence. Since the judge will have to make a choice inthe “intersection of legal punishment kinds”, the task of this article is to provide morecomprehensive and objective basis to the judges, the results of this research on the“intersection of legal punishment kinds”, providing reference to the judges in order toavoid arbitrary on decisions of what kind of sentence they make. This is my primarygoal of this research on the severity of indicators of penalties. Of course, my ultimategoal is to accurately measures the severity of each penalty, which is a very ambitiousproposition that the author alone can not be accomplished. Therefore, this article iscommitted to the pursuit of such a primary goal: first I find out the “intersection oflegal punishment kinds” from the criminal statutory provisions, and do a typed formcollate. Based on this, I make rough analysis the differences between the two or morekinds of punishment kinds. Finally, I turned to looking at these differences that mainlyreflect the severity of indicators of penalties.
The focus of this study is "penalty". This article turns to do estimates about the"quantity" of the severity of penalties, not for criminals "sentencing". This article isdivided into five aspects to demonstrate. The first part of the article gives thedefinition of "penalties" and explains the concept of the severity of indicators ofpenalties. Need for discussion in this article called "punishment" is made in aparticular context broad concept , including not only as specified in the penal system ,all kinds of punishment , but also the execution of the penalty methods, such assurveillance, detention, imprisonment, life imprisonment, the death penalty, finepenalty, deprivation of political rights , confiscation of property , probation, reprieveand etc.. This so-called “penalty system” combined all these “punishment” listedabove. The context meaning of “penalty severity reading” is a term with a specificmeaning. It is a reading of the severity of each penalty. "Severity" is a vague, roughconcept. Only by listing the factors that impact the severity of the penalty, andinvestigated these factors closely will interpret the severity of each penalty moreintuitive and more accurate. The severity of penalties is not the same. Penalties linedby the severity different from light to heavy together, constitute a progressive line,thus is a complete system of penalties.
The second part to the fourth part focuses on the “intersection of legalpunishment kinds”. Since every sentence has a corresponding “penalty severityreading”, then this will be determined by variety of factors to measure the severity,which are hidden in the difference between the penalties. In any kinds of “intersectionpenalties”, there are bound to contain numerous differences, such as differences inindividualization of punishment, the penalty function of differences in thetransformation, the severity difference is one of them. But this article singled outoption to compare the severity factors, while the other differences factors will beexcluded. In other words, the focus of this study always falls in the internal severitydifferences among “intersection of legal punishment kinds”. This is the topic of thisarticle: heavy and light penalty.
The object of study is the severity of penalties, but the author has to cover thescope of the study to be able to dig out all of the differences among penalties. Thereason is that the severity differences and other differences are not distinctly separate.
In addition to the penalty provisions differences, the same kind of punishment will bediffer in severity factors in result of the different ways of implementation, thusaffecting the severity of penalties. Take probation and death sentence with a two-yearreprieve for example, the amount of “penalty severity reading” in addition to theconstituent elements of criminal penalties itself constraints, there are other kinds ofcriminal penalties on criminals do not have: the deterrent factors. These factors alsoshould be measured at the time of doing research. Therefore, we have to amend theforegoing statements. We distinguished the severity differences with other differencesfactors previously, in fact, one or several independent severity factors does not exist,severity factors inherent in all the difference , the more or less. The research approachis: first, to dig out all the differences as far as possible; Second, to dig out the severityof the factors these differences in as far as possible; Third, to do fine , quantitativetrade-offs to these severity factors of penalties.
In the process of comparing the severity of penalties, fuzzy math theory andsocial attitudes towards penalties provides empirical and theoretical evidence-basedinformation on quantitative description of the interaction between verification andinspection. Although this paper is to compare the penalties for quantitative research,but so-called “quantitative” is not necessarily accurate to specific values. Sometimeswe even try to avoid give accurate values. Because I realized that I do not yet have thecapabilities to give precise values or formulas amount of “penalty severity reading”.
In the absence of the systematic, adequate, repeated calculations with the theories ofsociology, statistics and etc., comprehensive demonstration prior to any object in thesocial sciences to give precise figures are not withstand questioning assignment. Themost the author can do is to give an approximate reading to one “penalty severity”
factor relative to a given interval, so that the research of the severity of indicators ofpenalties will go through qualitative to quantitative propulsion.
Penalties can be divided into principal penalty and supplementary penaltyaccording to the criminal law. Punishments by type can be divided into Freiheitsstrafe,life punishment, property punishment and qualifications punishment. The author firstselected principal penalty to compare, then selected the same type of penalties tocompare, i.e. Freiheitsstrafe as detention and imprisonment, property punishment asfine and confiscation. The biggest breakthrough in this article is to createcomparability between different types of penalties, such as comparison of probationand prison punishment, both are two different implementation modalities ofimprisonment, one belonging to a sentence of imprisonment, the other belonging to acommunity correction objects. One year in prison and three years imprisonment andthree years probation, which judgment is less severe? I also hope that through thisresearch will help solve the problem. As for the comparison of death sentence withreprieve and life imprisonment is between different types of penalties, one being afree penalty, another being a life punishment. However, after the expiry of thereprieve, there will not be an actually death sentence.
This second chapter is a comparison study on detention and imprisonmentpenalties. The author focused on four major differences of detention andimprisonment through the method of induction: the prison premises, forced labor,incentive and punishment treatment, likelihood of recidivism. The author visitsseveral sites of detention center, and did a comparative law stipulates research, foundthat: the special provisions in detention such as "near execution", " home authority ",are basically not implemented; while the forced labor factor, such as labor conditions,labor jobs, working hours and the possibility of recidivism in detention, is indeedconstitute mitigation than imprisonment. In addition, the author also combined thetreatment of prisoners and the prison’s dormitory conditions, with inspection andcomparison, and gives the final draw conclusions that detention is less severe thanimprisonment. This conclusion is a little against the proportion of fixed-termimprisonment contrary according to the section 44 in criminal law. And bring avariety of considerations; the author obtained a preliminary estimate the “penaltyseverity reading” amount of detention should be slightly less than the penalty ofimprisonment.
The third chapter is a comparison study on suspended death penalty and lifeimprisonment. Originally the author should compare death penalty and lifeimprisonment, but the value of life is far greater than freedom, so from this point ofview the severity of the death penalty is certainly far heavier than life imprisonment.
This is obvious, without argument. But death penalty has two different ways ofimplementation, In addition to immediate implementation of the death penalty, thereis death with a two-year reprieve. It is uncertain that whether death will actually beexecuted. Then exactly, it is very ambiguous the death penalty with immediateexecution is heavier than a lifetime imprisonment, but the death sentence with areprieve on the coordinate position of “penalty system” is ambiguous. If not a legalpunishment species, reprieve undeniably holds a unique penalty severity amount. Anddeath penalty with reprieve is bounded in between the immediate implementation ofthe death penalty and the lifetime imprisonment. But which of the two is closer toreprove’s “penalty severity reading” amount, it will need to take some efforts todemonstrate. The author divided the differentiating factors of the death penalty withreprieve and life imprisonment into two categories: one category is only a reprievecontents, and life imprisonment doesn’t according to the provisions, such as lifeimprisonment has no provisions commuted to limitation, nor to set reprieve period;second category is reprieve and life imprisonment has both provisions but the contentis different, such as the foregoing provisions of commutation and significantmeritorious services. After investigation and evaluation, after a death sentence withreprieve in commuted to life imprisonment, the provisions of execution, significantmeritorious service, recidivists and tight serious violent crime penalty, reprieve period,all these four aspects of differs with the original life imprisonment during executing,also the difference is limited. After detailed study, the author found that exclude thedeterrent factors of reprieve period , the actual prison term differs of different kinds ofdeath penalty with reprieve has a gap of up to 10 years or longer , while the deathpenalty as a whole only has a gap of 2 years between the life imprisonment. Instead ofsaying" Criminal Law Amendment (Eight)" widening the imprisonment disparitybetween death penalty and life imprisonment, it is rather to say that the Amendmentwidened the prison term gap between different types of the death penalty withreprieve.
The fourth chapter is a comparison study on fine and confiscation of propertypenalty. First, the author focused on the application form of the both penalty, andfound: confiscation of property is to be applied together with the principal penalty ,and always go together with the heavier principal penalty, while fine can be imposedalong and as well as with principal penalty. Punished with fines along generallyappear in the case of less serious punishment, leave the judge to choose from amaximum of five years in prison. So compared to fines, confiscation of propertygenerally only apply in the cases of more serious crimes. But the phenomenon itselfcan not prove fine is less severe than confiscation penalty as an additional punishment.
Secondly, the author focused on the object and unit of measure of property. Fromliteral meaning, it seems that fine is to ask the criminal to pay a certain amount ofmoney, while forfeiture of property can be targeted either in money or propertyobjects. But in fact when executed, if a criminal is sentenced to confiscation ofproperty is to be executed by forfeiture the real property or intellectual property rightsetc., these property rights or real property shall be converted into money throughauction or other process before turned to the state treasury. For criminals who weresentenced to a fine, they can also got the intellectual property, stock equity, and etc.
into money by auction and pay these money into treasury. Therefore, there is nodifference between the two penalties’ execution object. In determining the propertyamount, the criminal law did not form a specified limit to the fine, considering theactual affordability of criminals it is more difficult to accomplish when it comes to afine cost sky-high price. It also contributed the main reason of the low implementationrate of fines and confiscation of property. Third, the implementation of both penaltieswas compared. Fines implementation period is infinitely long, even up to thecriminal's rest life. And even the confiscation of all property also keeps criminals andtheir necessary dependents living expenses extent. Therefore, in many cases, fines areheavier than the confiscation of property. Of course, this conclusion is not entirelytrue when in the case of very wealthy criminals, fines or still may be lighter thanconfiscation of property.
Chapter V is a comparison study on surveillance and deprivation of politicalrights. This is a study between principal penalty and additional punishment, and"intersection of punishment kinds" between Freiheitsstrafe and qualification penalty.
After research, the author found that deprivation of political rights used as a singlepunishment at the scope is much larger than an additional scope thereof. It’s no lessthan the proportion in the scope of surveillance and detention. Deprivation ofpolitical rights used alone is no different with other principal punishments, and themaximum can choose to apply with can be up to five years in prison. Although thegeneral provisions of the criminal law form deprivation of political rights anadditional punishment, but the specific provisions of sub-rule in the application isexactly as principal penalty, which offers the deprivation of political rights andsurveillance a comparable platform. The author analysis further in-depth,surveillance is lack of punitive factors. After estimation and analysis, some parts ofthe implementation of the surveillance consist with deprivation of political rights. Injudicial practice, surveillance and deprivation of political rights mainly perform bycommunity corrections agencies - even if both the executive bodies on legislativerequirements are slightly different. Surveillance and deprivation of political rightstake rarely any rights from criminals. Therefore, I believe that deprivation ofpolitical rights lighter than the surveillance, but the difference of the two is verylimited.
The sixth chapter is a comparison study on penalties with and without probation.
According to the nature and characteristics of probation, a probation sentence wouldinclude two aspects: First, the burden that probation itself will bring about to thecriminals; second, the deterrent factor that comes from the likelihood of execution ofthe original sentence. The amount of severity of probation is a combination of the twofactors mentioned above. By comparison, the author found probation is rather thansurveillance or even less. While the deterrence factor of probation is always a virtualpsychological repression, not the actual denial of the rights, the quantity of thedeterrence factor of probation is always less than the deprivation of actual rights .
Therefore, in order to meet the requirement of Proportionality, it is necessary to bringmore pressure to the criminals in the execution. Yet it is not seen any differencesbetween probation and surveillance.
Research on the “intersection phenomenon” is a huge systematic project, is onelengthy research process from qualitative to quantitative study. Facing the“intersection of legal punishment kinds” phenomenon, I have neither the law basis,nor legal theory guidance. Therefore, what I have done in this research is agroundbreaking, filling in the blanks of relevant theory. I first comb and dig outvaluable content from lines of the code and provisions. the carefully combing theprovisions of the Penal Code, and accordingly to set up a framework for thisresearch. Then diverge, my research tentacles extended to other categories of law,such as criminal procedure, administrative law, prison law; Also I triedmulti-disciplinary blends of research methods, such as empirical methods, casestudies and inductive method , interviews of judges and criminals method.
This article is the first step in a long-term goal and is the minimum target of thisambitious project. Of course, the study of the penalty severity will not only exist inthe “intersection of legal punishment kinds”. The ultimate goal of this study is to linkup all the existing penalties and measure the severity of the penalties precisely. Yet Ican not independently complete such a major complex issue. Therefore, this articlecan only take “intersection of legal punishment kinds” as a breakthrough, and take theexistence of “intersection of legal punishment kinds” as the basic premise of thisstudy. For these penalties that doesn’t have “intersections" will not be discussed inthis research paper .
[Key Words] Intersection of Punishment the Severity of Indicatorsof Penalties Penalty Comparation The Implementation of thePenalty Order of the Penalty System返回本篇博士论文目录查看全文 下一章：导 言