论刑法“报应限制功利”原则在配刑中的实现--“点刑罚”理论之提倡

刑法中的"报应限制功利"原则,其内涵与大陆法系国家刑法理论中的责任原则的意义相近,因其重视对人权的保障而符合现代法治国家基本精神。但在具体的立法和司法运作过程中,各国通行的做法与这一原则尚存一定差距,甚至常常与之发生背离。要使"报应限制功利"原则在配刑过程中贯彻始终,关键在于坚持"点刑罚"理论。

On the Accomplishment of the Principle of "Retribution Restricting Utility" in the Process of Distributing Punishment

The principle of "retribution restricting utility" in the criminal law, whose meaning is similar to that of the "responsibility principle" in the criminal law theory of the continental law countries, is in keeping up with the essential spirit of the modern nations ruled of law, for its closer concentration on the safeguarding of human rights. But there is still a wide distance from the principle in the legislature and the judicial practice in many countries. To carry out the principle through the process in the distribution of punishment, it is of great importance to adhere to the "point punishment" theory.