刑事裁判文書量刑說(shuō)理問(wèn)題研究
發(fā)布時(shí)間：2018-10-15 18:16
【摘要】：刑事裁判文書量刑說(shuō)理是法官對(duì)其作出的量刑結(jié)論說(shuō)明理由,并將量刑理由反映到裁判文書中。由于法律規(guī)范的概括性,具體到每個(gè)案件如何裁判便取決于法官的自由裁量,法官可以在法定量刑幅度內(nèi)任意選取其中一個(gè)量刑點(diǎn)。裁判文書量刑說(shuō)理制度可以在一定程度上限制法官自由裁量權(quán),要求法官對(duì)其作出的量刑結(jié)論充分說(shuō)明理由,在此過(guò)程中對(duì)自己的判斷不斷進(jìn)行反思和審查,最終得出客觀合理的解釋。隨著裁判文書上網(wǎng)工作的推進(jìn),裁判文書的受眾已經(jīng)從簡(jiǎn)單的個(gè)體擴(kuò)大到社會(huì)公眾。一份邏輯嚴(yán)密、說(shuō)理充分的裁判文書可以讓公眾看到法官思維的過(guò)程及其心證的過(guò)程,使整個(gè)量刑程序透明化,減少公眾疑慮,進(jìn)一步增強(qiáng)裁判文書可接受性,樹立司法公信力,以此來(lái)保障程序公正。我國(guó)在裁判文書量刑說(shuō)理方面較為薄弱,其表現(xiàn)在以下幾個(gè)方面。第一,量刑觀念失衡,在裁判文書制作上,著重對(duì)定罪進(jìn)行說(shuō)理,忽視量刑說(shuō)理。第二,我國(guó)裁判文書量刑說(shuō)理格式化現(xiàn)象嚴(yán)重,不僅在文書結(jié)構(gòu)上嚴(yán)格遵循"首部、事實(shí)部分、理由部分、判決結(jié)果部分和尾部",未對(duì)定罪和量刑進(jìn)行嚴(yán)格區(qū)分,未就具體量刑情節(jié)進(jìn)行說(shuō)明,僅僅對(duì)量刑證據(jù)簡(jiǎn)單羅列,而且說(shuō)理不具針對(duì)性,許多判決書對(duì)量刑情節(jié)的描述都如出一轍。第三,量刑說(shuō)理不充分,關(guān)鍵地方含糊其辭,寥寥數(shù)筆帶過(guò)。第四,我國(guó)量刑說(shuō)理普遍缺少嚴(yán)密的法律推理。固有的"三段論"推理模式使裁判文書缺少推理空間,整篇裁判文書仿佛是零散的幾句說(shuō)理堆砌而成。第五,我國(guó)裁判文書量刑說(shuō)理過(guò)于忽視辯方意見(jiàn),對(duì)辯方意見(jiàn)不論采納與否都不予說(shuō)明,在制作裁判文書的時(shí)候能簡(jiǎn)則簡(jiǎn)。歸根到底,我國(guó)裁判文書量刑說(shuō)理不足要?dú)w咎于以下幾點(diǎn)原因:首先,"案多人少"的司法環(huán)境以及"重定罪輕量刑"的傳統(tǒng)觀念使法官不愿說(shuō)理;其次,受到內(nèi)部上級(jí)領(lǐng)導(dǎo)及政法委的干預(yù)以及大眾輿論的監(jiān)督,法官為了避免"言多必失"不敢說(shuō)理;最后,我國(guó)當(dāng)前的法官選任要求不算高,專業(yè)水平低的法官受限于自身理論功底,表達(dá)能力不強(qiáng),語(yǔ)言文字功底差,沒(méi)有能力做到說(shuō)理透徹。因此,要迫切完善刑事裁判文書中的量刑說(shuō)理。完善量刑說(shuō)理首先要完善制度規(guī)范。第一,立法明確量刑說(shuō)理,可以借鑒域外經(jīng)驗(yàn)將量刑說(shuō)理上升到法律層面強(qiáng)制法官說(shuō)理。第二,增加量刑答辯程序,在審前將公訴機(jī)關(guān)的量刑建議書傳達(dá)給辯方,控辯雙方在庭審的時(shí)候可以針對(duì)量刑進(jìn)行法庭調(diào)查和辯論,以此給法官提供思路,綜合得出讓控辯雙方都接受的量刑結(jié)論。第三,建立量刑說(shuō)理激勵(lì)機(jī)制,以看得見(jiàn)的利益去刺激法官說(shuō)理。第四,建立裁判文書言論免責(zé)制度,讓法官可以放下顧慮去說(shuō)理。第五,推進(jìn)裁判文書上網(wǎng)公開,將裁判文書置于大眾監(jiān)督之下,倒逼法官對(duì)量刑結(jié)論作出充分說(shuō)理。其次,明確量刑說(shuō)理的要素。在量刑說(shuō)理的時(shí)候第一要秉持合法性、合理性、邏輯性、充分性的原則,一份合法、合理,邏輯嚴(yán)密、充分的量刑說(shuō)理會(huì)使裁判文書顯得更加專業(yè)。第二,在確立量刑原則的基礎(chǔ)上從根本上解決量刑說(shuō)理,即量刑說(shuō)理的內(nèi)容。一份有效的量刑說(shuō)理應(yīng)當(dāng)包括對(duì)量刑依據(jù)、量刑情節(jié)對(duì)量刑結(jié)論的影響以及控辯雙方的量刑意見(jiàn)和建議的說(shuō)理。第三,裁判文書量刑說(shuō)理應(yīng)當(dāng)規(guī)范透徹,根據(jù)個(gè)案結(jié)合當(dāng)事人自身特點(diǎn)進(jìn)行個(gè)性化說(shuō)理。為了實(shí)現(xiàn)"繁簡(jiǎn)分流",可以根據(jù)案情對(duì)不同類型案件進(jìn)行不同程度的說(shuō)理。最后,要提高法官說(shuō)理能力。第一,提高法官量刑說(shuō)理意識(shí),讓法官認(rèn)識(shí)到量刑說(shuō)理的重要性和必要性。第二,經(jīng)常為法官提供專業(yè)的培訓(xùn),從技術(shù)上提高說(shuō)理能力。第三,將量刑說(shuō)理能力作為法官考評(píng)的參考因素之一,以考評(píng)的方式引起法官的自我監(jiān)督。第四,在選拔法官的時(shí)候要嚴(yán)格把關(guān),使真正有水平有能力的人成為法官。
[Abstract]:The sentencing principle of criminal judgment instrument is the explanation of the sentencing conclusion made by the judge, and the reason of sentencing is reflected in the judgment instrument. Due to the generality of the legal norm, the judge can arbitrarily select one of the sentencing points within the legal sentencing range depending on the discretion of the judge. The sentencing theory system of the referee instrument can limit the discretion of the judge to some extent, ask the judge to give full explanation on the sentencing conclusion made by the judge, reflect and review his judgment constantly in this process, and finally get the objective and reasonable explanation. With the promotion of the online work of the referee instrument, the audience of the referee instrument has been expanded from simple individuals to the public. A logical and reasonable judgment instrument can make the public see the process of the judge's thinking and the process of the heart card, make the whole sentencing procedure transparent, reduce public doubts, further enhance the acceptability of the judgment instrument, and establish the judicial credibility, so as to guarantee the procedural justice. China's decision-making instrument is weak in sentencing theory, which shows in the following aspects. First, the unbalance of sentencing concept, on the making of the referee instrument, focus on the conviction and reason, ignore the sentencing theory. Secondly, it is not only strictly observed in the structure of the instrument, but it is seriously formatted in the judgment instrument of our country. "header, fact part, reason part, judgment result part and tail part" In the absence of a strict distinction between conviction and sentence, the specific sentencing circumstances are not described, and only the sentencing evidence is simply listed, and the reasoning is not targeted, and many judgments are similar to the description of the sentencing circumstances. Third, the sentencing theory is not sufficient, the key place is vague, the number of a few pens have been taken. Fourth, there is a general lack of strict legal reasoning in the sentencing theory of our country. inherent syllogism The reasoning model lacks the reasoning space of the referee instrument, and the whole judgment document seems to be scattered and stacked in a few words. Fifth, our country's decision-making instrument should ignore the defense's opinions too, and it will not be explained whether the opinions of the defense are adopted or not, and Jane can be simplified when making referee documents. At the same time, the author points out the following reasons: Firstly, "How many people are in the case" (c) The judicial environment and "Light conviction and light penalty" The traditional concept makes the judge not willing to speak; secondly, it is subject to the intervention of the internal superior leaders and the political commissar and the supervision of the public opinion, so as to avoid "There is much to be lost." In the end, China's current judge's elective requirement is not high, and the judge whose professional level is low is limited by its own theory foundation, the expression ability is not strong, the spoken and written language is poor, and there is no ability to make a thorough statement. Therefore, it is urgent to perfect the sentencing theory in the criminal judgment instrument. To perfect the sentence theory, we should perfect the system norm. First, the legislation clearly defines the theory of sentencing, and can draw lessons from the foreign experience to raise the sentencing theory to the legal level to enforce the judge's reasoning. Second, increase the sentencing reply procedure, communicate the sentencing proposal of the public prosecution organ to the defense before the trial, and the defense and defense parties can conduct legal court investigation and debate on the sentence when the trial is heard, so as to provide the judge with the way of thinking and comprehensively obtain the sentencing conclusion accepted by both parties. Third, establish the sentencing theory incentive mechanism, in order to see the interests to stimulate the judge's argument. Fourthly, we should set up an exemption system for the judge's instrument, let the judge put down his concerns and talk. Fifth, push the referee instrument to open the net, put the referee instrument under the supervision of the masses, make the judge make a sufficient argument to the conclusion of the sentencing. Secondly, clear the elements of sentencing theory. At the time of sentencing, the principle of legality, rationality, logic and sufficiency should be adhered to, and a legal, reasonable, logical and sufficient sentence should be taken to make the judgment instrument more professional. Secondly, on the basis of establishing the principle of sentencing, fundamentally solve the sentencing theory, that is, the content of sentencing theory. An effective sentence theory should include the basis of sentencing, the influence of sentencing circumstances on the conclusion of sentencing, and the theory of sentencing opinions and suggestions of both parties. Third, the sentencing principle of the referee instrument should be thoroughly standardized, according to the individual characteristics of the case and the individual's own characteristics. to achieve "Traditional simple shunt" Different types of cases can be rationalized according to the merits of the case. Finally, to improve the judge's reasoning ability. First, improve the judge's sense of sentencing, let the judge realize the importance and necessity of sentencing theory. Secondly, professional training is often provided for judges and technical skills are technically improved. Thirdly, as one of the reference factors of judge's evaluation, the judge's self-supervision will be induced in the way of evaluation. Fourthly, strict control should be exercised in the selection of judges, so that the truly horizontal and competent person becomes a judge.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D925.2
本文編號(hào)：2273417
[Abstract]:The sentencing principle of criminal judgment instrument is the explanation of the sentencing conclusion made by the judge, and the reason of sentencing is reflected in the judgment instrument. Due to the generality of the legal norm, the judge can arbitrarily select one of the sentencing points within the legal sentencing range depending on the discretion of the judge. The sentencing theory system of the referee instrument can limit the discretion of the judge to some extent, ask the judge to give full explanation on the sentencing conclusion made by the judge, reflect and review his judgment constantly in this process, and finally get the objective and reasonable explanation. With the promotion of the online work of the referee instrument, the audience of the referee instrument has been expanded from simple individuals to the public. A logical and reasonable judgment instrument can make the public see the process of the judge's thinking and the process of the heart card, make the whole sentencing procedure transparent, reduce public doubts, further enhance the acceptability of the judgment instrument, and establish the judicial credibility, so as to guarantee the procedural justice. China's decision-making instrument is weak in sentencing theory, which shows in the following aspects. First, the unbalance of sentencing concept, on the making of the referee instrument, focus on the conviction and reason, ignore the sentencing theory. Secondly, it is not only strictly observed in the structure of the instrument, but it is seriously formatted in the judgment instrument of our country. "header, fact part, reason part, judgment result part and tail part" In the absence of a strict distinction between conviction and sentence, the specific sentencing circumstances are not described, and only the sentencing evidence is simply listed, and the reasoning is not targeted, and many judgments are similar to the description of the sentencing circumstances. Third, the sentencing theory is not sufficient, the key place is vague, the number of a few pens have been taken. Fourth, there is a general lack of strict legal reasoning in the sentencing theory of our country. inherent syllogism The reasoning model lacks the reasoning space of the referee instrument, and the whole judgment document seems to be scattered and stacked in a few words. Fifth, our country's decision-making instrument should ignore the defense's opinions too, and it will not be explained whether the opinions of the defense are adopted or not, and Jane can be simplified when making referee documents. At the same time, the author points out the following reasons: Firstly, "How many people are in the case" (c) The judicial environment and "Light conviction and light penalty" The traditional concept makes the judge not willing to speak; secondly, it is subject to the intervention of the internal superior leaders and the political commissar and the supervision of the public opinion, so as to avoid "There is much to be lost." In the end, China's current judge's elective requirement is not high, and the judge whose professional level is low is limited by its own theory foundation, the expression ability is not strong, the spoken and written language is poor, and there is no ability to make a thorough statement. Therefore, it is urgent to perfect the sentencing theory in the criminal judgment instrument. To perfect the sentence theory, we should perfect the system norm. First, the legislation clearly defines the theory of sentencing, and can draw lessons from the foreign experience to raise the sentencing theory to the legal level to enforce the judge's reasoning. Second, increase the sentencing reply procedure, communicate the sentencing proposal of the public prosecution organ to the defense before the trial, and the defense and defense parties can conduct legal court investigation and debate on the sentence when the trial is heard, so as to provide the judge with the way of thinking and comprehensively obtain the sentencing conclusion accepted by both parties. Third, establish the sentencing theory incentive mechanism, in order to see the interests to stimulate the judge's argument. Fourthly, we should set up an exemption system for the judge's instrument, let the judge put down his concerns and talk. Fifth, push the referee instrument to open the net, put the referee instrument under the supervision of the masses, make the judge make a sufficient argument to the conclusion of the sentencing. Secondly, clear the elements of sentencing theory. At the time of sentencing, the principle of legality, rationality, logic and sufficiency should be adhered to, and a legal, reasonable, logical and sufficient sentence should be taken to make the judgment instrument more professional. Secondly, on the basis of establishing the principle of sentencing, fundamentally solve the sentencing theory, that is, the content of sentencing theory. An effective sentence theory should include the basis of sentencing, the influence of sentencing circumstances on the conclusion of sentencing, and the theory of sentencing opinions and suggestions of both parties. Third, the sentencing principle of the referee instrument should be thoroughly standardized, according to the individual characteristics of the case and the individual's own characteristics. to achieve "Traditional simple shunt" Different types of cases can be rationalized according to the merits of the case. Finally, to improve the judge's reasoning ability. First, improve the judge's sense of sentencing, let the judge realize the importance and necessity of sentencing theory. Secondly, professional training is often provided for judges and technical skills are technically improved. Thirdly, as one of the reference factors of judge's evaluation, the judge's self-supervision will be induced in the way of evaluation. Fourthly, strict control should be exercised in the selection of judges, so that the truly horizontal and competent person becomes a judge.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D925.2
【參考文獻(xiàn)】
相關(guān)期刊論文 前3條
1 萬(wàn)毅;;量刑正義的程序之維[J];華東政法學(xué)院學(xué)報(bào);2006年05期
2 蘇力;判決書的背后[J];法學(xué)研究;2001年03期
3 龍宗智;刑事判決應(yīng)加強(qiáng)判決理由[J];現(xiàn)代法學(xué);1999年02期
，本文編號(hào)：2273417
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