论定罪与量刑之关系--以量刑程序独立化改革为视角

我国量刑问题经历了从以实体法为主到以程序法为主的发展过程。美国量刑指南建立在定罪与量刑之关系十分清晰的基础上。不廓清定罪与量刑之关系，强推量刑程序独立化改革，效果必然不理想。从刑罚具有的惩罚和教育的功能角度，可以划清定罪与量刑之关系，惩罚功能通过定罪决定报应刑量来实现，教育功能通过量刑决定宣告刑量来实现。各罪报应刑量应由最高司法机关根据“宽严相济”刑事政策适时发布司法解释来确定。

On Relationship Between Conviction and Sentence:with Independent Sentencing Procedure Reform Perspective

Chinese sentencing problems have been experienced a developing process from substantive law priority to procedure law priority. America sentencing guidelines is estabished on the clear rela-tionship between conviction and sentencing. Without clarifying the relationship between conviction and sentencing and that the state supreme judicial organs promote the reform of independent sentencing procedure,it is inevitable that the effect of sentencing procedure reform is not unsatisfying. We can clarify the relationship between convictions and sentencing clearly from the view that penalty has two functions of punishment and education,among which the punishment function of penalty can be a-chieved through conviction to decide the amount of retribution punishment,and the education function of penalty can be achieved through the sentencing decision to decide the amount of declaration punish-ment. The amount of retribution punishment of every crime shall be made by the state supreme judi-cial organ according to the criminal policy of“temper justice with mercy”.