犯罪定量模式檢討

Reviewing of Criminal Quantitative Mode

如所周知，中外刑法由於法律文化傳統、法律演進路徑的不同而形成不同的犯罪定量模式，即西方國家一般實行“司法定量”模式而中國則實行“立法定量”模式。“立法定量”模式是實質主義刑法觀的產物，雖然具有實質合理性，符合刑法謙抑原則，但是欠缺形式合理性，從而帶來一系列問題。因此，放棄立法定量，實行司法定量，並構建輕罪處理機制，是理性選擇。

Known to all of us, the Penal Law of China has developed a different criminal quantitative mode from those of foreign countries because of different legal cultural tradition and legal developing path, The western countries take generally the judicial quantitative mode and China takes the legislative quantitative mode, the latter is the product of substantial theories of criminal law. In spite of being rational substantially and consistent with the principle of restraining criminal law, the legislative quantitative mode is deficient in formal rationality and results in such problems as: Firstly, it is very difficult technically in legislation, that is, the legislative body cannot outline clearly the severity of crimes; Secondly, it will confuse judicially the boundary of crime and noncrime, or of criminal illegality and other illegalities and affect the realization of the principle of legality; Thirdly, it is difficult to position properly the element of criminal severity in the system of the constitution of crime; Finally, it will result in omissions of the system of criminal law and be adverse to crime prevention and establishment of social basic morality. Therefore, it is a rational choice to give up the legislative quantitative mode, take the judicial quantitative one and set up the disposition mechanism of minor offenses.