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既有的关于刑罚本质的报应刑论、目的刑论、折衷论和关系论等理论都未能有效揭示刑罚的本质,根本原因在于对宪法考量的不足。从宪法的角度进行分析,刑罚表现为国家动用全部暴力机器对受刑人权利的剥夺,受刑人在这一关系中处于绝对弱势地位,其合法权利极易受到侵犯,因而刑罚的本质应当是对受刑人基本权利的保障。为了践行和维护这一本质,就需要对制刑权、求刑权、量刑权、行刑权进行宪法控制。
The existing theories of retribution, the purpose of the theory of torture, the theory of eclecticism and the theory of relationship, which are both on the nature of the penalty, have failed to reveal the essence of the penalty effectively. The fundamental reason lies in the lack of consideration of the constitution. From the perspective of the constitution, the punishment is manifested in the state’s deprivation of the rights of prisoners by using all violent machines. The torturer is in an absolutely disadvantaged position in this relationship and its legal rights are extremely vulnerable. Therefore, the essence of the penalty should be to impose a penalty on torture Protection of basic human rights. In order to practice and maintain this essence, it is necessary to exercise constitutional control over the system of making and punishing prisoners, seeking prisoners’ rights, sentencing and executions.