中国量刑程序改革：误区与正道
左卫民中国量刑程序改革：误区与正道
Sentencing Procedure Reform in China：Mistakes and Way Out
期刊名称：《法学研究》
期刊年份：
作者：左卫民
单位：四川大学法学院
中文关键词：量刑程序;量刑模式;实体性改革;程序性改革
英文关键词：sentencing procedure;sentencing model;substantive reform;procedural reform
中文摘要：
对抗化的量刑程序改革试点效果不尽如意，某种程度上可以归因于制度改革所赖于支撑的理论根据。该理论认为，量刑制度的主要问题是量刑程序不公正，解决之道是借鉴英美模式，建立对抗式量刑程序。然而，真正引起社会普遍关注乃至广泛质疑的是量刑不均衡与量刑僵化问题，这主要是实体法问题；认为英美法系在传统上采用对抗式量刑程序的观点在一定程度上也是对英美法系量刑制度与实践的误读。未来的量刑制度改革应以实体性改革为主，程序性改革为辅；而在量刑程序改革方面，不宜大改，可以小改或微调。
英文摘要：
In practice, those experimental programs of adversarial sentencing procedure reform have not proved successful. Empirical study has revealed that compared with previous practice, the reformed sentencing procedure does not lead to apparent differences in presenting sentencing evidence and facts, nor does it result in significant changes with respect to sentencing outcomes. The reformed procedure also consumes more judicial resources and impedes court efficiency. In general, within the current criminal penalty structure, although some progress has been achieved in the adversarial sentencing procedure reform, it has not yet met the expectation to produce reasonable and fair sentencing.Such result can be attributed to the underlying theory upon which the reform is established. The theory argues that the major problem in current sentencing system is the unfairness of sentencing procedure. In particular, criminal trials focus only on conviction, judges care only for conviction facts, and the current law does not provide a sentencing procedure in an adjudication model. So the theory suggests to learn from the common law model and to establish an adversarial sentencing procedure. However, it is a mistake that traditional common law sentencing practice employs an adversarial procedure. In contemporary China, those sentencing issues that draw public attention and criticisms are not whether the sentencing procedure is fair, but the unevenness and rigidness of sentencing, although both are substantive issues. Rigid sentencing reflects the lack of flexibility in sentencing and the failure to take into consideration detailed facts and individual circumstances of a specific defendant. Therefore, the main problem is not a procedural one, but the mistake of addressing a substantive issue in a procedural manner. Future sentencing reform should firstly center on substantive reform supplemented by procedural reform. Specifically, the first step should be the standardization of sentence criteria, and then move to the reform of sentencing procedure and use procedural reform to fertilize substantive reform. Secondly, only small changes, instead of a thorough one, should be taken in sentencing procedure reform. Future reform should also standardize sentencing procedure in accordance with principles of efficiency and rationale, develop a sentence reasoning system, and establish remedial procedure for sentencing.
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