“后劳教时代”的人身危险性因素研究

定罪量刑日益重视人身危险性,是刑法发展既重视"行为",也重视"行为人"的必然结果。然而究竟什么是人身危险性,人身危险性与主观恶性之间的关系,人身危险性对定罪量刑的实然、应然影响及其法律根据,目前在理论上并不清晰,在实践中标准也不尽一致。人身危险性可从不同方面体现出来,例如初犯可能性与再犯可能性、主观的再犯可能性与客观的再犯可能性、违法的人身危险性与犯罪的人身危险性。在"后劳教"时代,是否需要将原属于劳动教养法规所规定的一些危害行为规定进入刑法,人身危险性是一个绕不过去的重要因素。刑事责任的追究应当避免过分关注行为人的人身危险性从而忽略其社会危害性。

On the Relationship between Subjective Evil,Personal Dangerousness & Conviction and Sentencing in the Post Laojiao System

Subjective evil and personal dangerousness have been increasingly paid more attention to during conviction and sentencing. It is the inevitable result of valuing “act” and “actor” in the development of criminal law. However, what is subjective evil, what is personal dangerousness, what is the relationship between subjective evil and personal dangerousness, and to what extent they have played their roles in conviction and sentencing, are unclear in theory and in practice yet. Personal dangerousness may manifest from different aspects, such as the possibility of committing crime for the first time and the possibility of recommitment, the subjective possibility of recommitment and the objective possibility of recommitment, the possibility of law - breaking and the possibility of committing a crime. They are of great research value in “post reeducation through labor” era. It is dangerous to highlight personal dangerousness and overlook social harm. What is more, we should clarify the exact meaning of personal dangerousness first.