量刑的實踐及其未來走向

以責任和預防為核心的量刑理論試圖豎起一塊量刑“天花板”，以防止重刑主義。而量刑實務立場以及最高司法機關的改革邏輯對於責任刑從根本上制約量刑這一點卻認識不足，從而形成對罪犯一旦從重處罰情節較多時，其刑期就可以一直向上累加的不當認識。揭示量刑理論和實踐的關鍵差異對於推進認罪認罰從寬制度下的量刑科學化有積極意義。未來有必要對量刑理論進行適度改造，以滿足量刑實踐的“簡潔化”要求，注重區分“犯罪的過程性情節”和“犯罪人的個別性情節”，並將前者作為決定刑罰上限的原則性因素看待，將後者作為例外性微調責任刑的情節進行評價，從而確立量刑的階層性思維。由於責任刑是有幅度的，所以追求量刑建議確定化的可行性存疑。刑訴法學界單純從程式快速推進的角度思考量刑建議問題，存在明顯不足；以公訴人和被告人之間存在某種“合意”法官就不得有任何改變，來論證量刑建議的效力，屬於似是而非的說法。律師提出量刑異議且言之成理的情形下，法官有權對量刑建議進行改變。判斷量刑活動準確與否的唯一尺規是責任主義，量刑建議的精准性、採納率如何，顯然都不是關鍵。

The theory of sentencing with responsibility and prevention as the core tries to prevent severe punishment. But since the punishment based on liability fundamentally restricts sentencing, the practical standpoint of sentencing and the reform logic of the supreme judicial authority are not fully understood, resulting in an improper understanding that once there are more circumstances for heavier punishment, the prison terms can be accumulated upward. It is therefore useful to reveal the key differences between sentencing theory and practice to promote better sentencing under the system of leniency for pleading guilty and accepting punishment. In the future, it is necessary to reform the sentencing theory in order to meet the ''concise'' requirements of sentencing practice, pay attention to the distinction between ''the circumstances about process in a crime'' and ''the individual circumstances of the criminal'', and treat the former as the principle factor determining the upper limit of punishment and the latter as the circumstances of exceptional fine-tuning the punishment based on liability, so as to establish the hierarchy of sentencing. Since the punishment based on liability has a range, the feasibility of pursuing the determinacy of sentencing proposal is questionable. The existing literature simply considers the sentencing proposal from the perspective of rapid progress of procedure, which has obvious deficiencies. It is unfounded to suggest that if there is some agreement between the prosecutor and the defendant, the judge is not allowed to make any changes to justify the validity of the sentencing proposal. The judge has the right to change the sentencing proposal if the lawyer raises a reasonable objection to the sentencing. The only standard to judge the accuracy of sentencing is the principle of liability. Obviously, the accuracy and adoption rate of sentencing proposals are not the key.