裸刑均值的意义
白建军裸刑均值的意义
Mean of Declaratory Sentence of Crime without Statutory Sentencing Factors and Its Significance
期刊名称：《法学研究》
期刊年份：
作者：白建军
单位：北京大学法学院
中文关键词：量刑;裸刑均值;判例
英文关键词：sentencing;mean of declaratory sentence of crime without statutory factor;case
中文摘要：
量刑的实际水平到底低于、等于还是高于法定刑轻重程度，是立法与司法之间诸多关系之一。以21省市77家法院7万多刑事裁量为样本进行观察，可以得出量刑的实际水平显著低于法定刑中线的结论。这个结论可引发一系列理论思考，并成为我国模范判例制度的依据之一。
英文摘要：
Basing on the study of criminal judgments for 70,000 cases from 77 courts of 21 provinces and municipalities, this paper intends to answer the question of the relationship between practical sentencing status and statutory sentencing range of Chinese Criminal Law. According to this research, the mean of declaratory sentences of those cases without consideration of any statutory sentencing factor is generally lower than the median of their statutory sentencing range.Lower than the median of statutory range, as a group choice of judges, such mean is both legitimate and reasonable. In fact, the sentencing benchmark in the “Sentencing Advisory Guidelines of People’s Court” issued by the Supreme People’s Court of China is also significantly lower than the median of statutory range. According to this research, once we take the provisions from Criminal Law and Sentencing Advisory Guidelines as the dominant sentencing benchmark, then, the practical mean of declaratory sentence of crime without statutory factors can be deemed as the recessive sentencing benchmark, the third frame of reference for sentencing practice. By following this, we never intend to restrict judges’discretional act, instead, we offer better choices for them. This policy of persuasion, through respecting the activity of judges and encouraging them to be close to the average of judicial practice, will lead individual judge to keep consistency with other judges. Still, it can effectively avoid the whirlwind of ups and downs in sentencing practice. Furthermore, the mean of declaratory sentence of crime without statutory factors can learn actively and be adjusted passively. All in all, the plan of abstracting such mean from good-sized model cases should be an active experiment of absorbing the essential parts of common law into our statutory law system.
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