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罪与刑之间既存在正向的制约关系,有时也存在逆向的制约关系。我国传统的刑法理论在论及罪与刑的关系时总是强调罪对刑的决定作用,亦即采用“由罪而刑”的正向定罪机制。然而,完整、真实的罪刑关系是定罪对刑罚并非具有绝对的决定权,亦即刑罚对定罪有时也具有一定的制约作用。刑对罪的制约作用通常体现在是否定罪、选择何种罪名以及罪数的确定等方面。在刑事疑难案件审判的过程中可以采用“由刑而罪”的逆向定罪机制,即以量刑公正为基点从相关的数个刑法规范中选择合适的罪名,以实现罪刑均衡的目标。
There is a positive restrictive relationship between crime and punishment, and sometimes there is a negative restrictive relationship. When discussing the relationship between crime and punishment, the traditional theory of criminal law in our country always emphasizes the decisive function of crime against punishment, that is, adopts the positive criminal mechanism of “criminal punishment”. However, the complete and true relationship between crime and punishment is that conviction does not have the absolute right to decide on the punishment, that is, punishment sometimes has some restriction on conviction. The role of punishment on crime is usually reflected in the following aspects: whether to convict, what kind of offense to choose and how to determine the amount of crime. In the process of trial of criminal difficult cases, the criminal conviction mechanism of “crime by crime” can be adopted, that is, taking the justice of sentencing as the starting point, we can select the appropriate charges from several relevant criminal law norms in order to achieve the goal of balance of crime and punishment.