实然的规定与应然的选择--对现行刑法第五条通说的质疑

刑事古典学派主张罪刑相适应原则,近代学派主张刑罚个别化原则,学界将近代学派之观点归入罪刑相适应原则的根据是不足的。从实然层面看,我国现行刑法第5条之规定依然采取视罪行轻重置配刑罚的模式,并非像有些学者理解的那样包涵有刑罚个别化的内容。从应然层面看,刑罚轻重的置配既要罪刑相应,也要兼顾刑罚个别化的要求,但作为刑法基本原则应该以仅反映罪刑关系最基本的内容即罪刑相适应为宜。

An abrupt regulation and practical choice--a doubt of popular viewpoints about article 5 of the present criminal law

Classical school of criminal law insisted on correspondence of criminal action and punishment while modern school of law argued for the individualization of criminal punishment. It might be groundless for scholarship to categorize the viewpoints of the modern school of law into the correspondence of criminal action and punishment. In fact, article 5 of the present criminal law only reflects principle of correspondence of criminal action and punishment; it does not reflect principle of individualization of punishment as understood by many scholars. Punishment should established according to principle of correspondence of criminal action and punishment as well as principle of individualization of punishment; but as a basic principle, it should only reflect the basic content, i.e., principle of correspondence of criminal action and punishment.