法定刑以下处刑核准制度的改革与完善

法定刑以下处刑核准制度,是立法者考虑到犯罪和法律适用的双重复杂性,为在特殊案件中做到量刑适当而作出的专门规定。但由于对何为＂特殊情况＂认识不一、核准程序繁琐、核准期限过长等原因,这一制度基本被虚置。＂许霆案＂之后,学界与实务部门改革完善这一制度的呼声渐高。应放宽实体标准,寻求自由裁量权与罪刑法定的平衡点,简化与完善核准程序,以消除程序的消极影响和制约。

Reform and Improvement of the Approval System below the Legal Punishment Execution

The examination and approval system of particular sentencing not enough for legally prescribed punishment is a special provision designed to ensure appropriate sentencing under exceptional circumstances. During the sentencing process, legislators will take into account dual complexity of the crime and the legal applicability. However, due to non-uniform understanding of what ＂exceptional circumstances＂ in fact are, cumbersome examination and approval procedures, lengthy approval period thus come up and make this system basically exist in name only.Following the ＂Xu Ting Case＂, voices emerging from both the academic sector and the actual practice divisions for reforming and improving the institution are getting louder and louder. We propose in this article that standards of its substantiality should be relaxed, a balance point between judging freely and sentencing in accordance with the law should be sought, and the examination and approval procedures should be simplified and improved in order to eliminate any negative impacts and constraints of this process.