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随着我国刑法制度的不断完善,我们需要在刑法中继续倡导刑罚个别化。如果说依法治国是彰显法律(刑法)严肃性的体现,那么刑罚个别化则是体现了法律“以人为本”的人文取向。我国历年来所推行的刑法或者相关刑事政策并未对“刑罚个别化”这一术语做出明确定义,但从刑法理论学界的研究看来,刑法理论学界已经普遍接受和认可了这一术语所体现的内涵,在量刑和执行刑罚的过程中体现到“刑法人性化”的一面。对于刑法个别化这一概念的探究,刑法理论学界经历了一个从否定、不置可否、暧昧到明确的过程。刑罚个别化这一观点在提出之初,曾遭到学者明确反对,其认为:在量刑时考虑到犯罪分子罪行的恶劣程度,进而在执行刑罚时参考犯罪分子的个人情况是违背马克思主义基本观念的。对于否定刑罚个别化的考虑主要在于两个方面,第一,刑罚个别化是资本主义社会所推崇的刑罚取向,我国是社会主义社会,不宜效仿;第二,基于犯罪分子的人身危险性所考虑的,不过从我国刑法制度的发展历程看来,刑法理论学界对于人身危险性这一问题的研究较为隐晦。本文从刑罚个别化制度的原则和一般性内涵出发,结合到我国刑法制度实际,对刑法制度中刑罚个别化这一概念进行探究。
With the continuous improvement of our country’s criminal law system, we need to continue to advocate the individualization of penalties in criminal law. If governing the country by law is a manifestation of the seriousness of the law (criminal law), then the individualization of penalties reflects the humanistic orientation of law “people-oriented ”. The criminal law or related criminal policy that our country has carried out over the years does not have a clear definition of the term “individuation of punishment”. However, from the perspective of the study of the criminal law theoretical circle, the criminal law theoretical circle has generally accepted and approved this The connotation embodied by the term embodies the “humanized criminal law” in the process of sentencing and execution of punishment. For the concept of individualized criminal law to explore, criminal law theory has experienced a from negation, noncommittal, ambiguous to a clear process. At the beginning of the proposal, the viewpoint of individualization of punishment was explicitly opposed by scholars. In its opinion, it is contrary to the basic concepts of Marxism when taking into account the seriousness of criminal crimes in sentencing, and then referring to the individual circumstances of criminals when executing criminal penalties of. There are two aspects to the individualization of the negative penalty. First, the individualization of the penalty is the penalty orientation advocated by the capitalist society. Our country is a socialist society and should not imitate. Second, based on the personal danger of criminals, However, judging from the history of the criminal law system in our country, the study of criminal law theory scholars on the issue of personal danger is quite obscure. Based on the principle and general connotation of the individualized punishment system and the actuality of the criminal law system in our country, this article explores the concept of individualized punishment in criminal law system.