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量刑基准的确定,是量刑公正的基础和关键。由于量刑基准客观地存在于经验型法官的潜意识之中,但却没有成为量刑规范的重要内容,并且量刑不均衡向来饱受广大民众的质疑,所以,清楚认识量刑基准的概念、量刑基准确立的必要性以及量刑基准确立的方式就成为了我国量刑规范化的重要任务。基于“主要因素论”的立场,量刑基准的确定方法总体上应以受害者被侵害的程度作为主要因素,并根据相应法律后果,即法定刑的设定,加以判断,而要构建我国量刑基准,则需要在立法方面要进一步细化法定刑的范围,通过司法解释的形式进一步明确量刑标准,并充分发挥判例的指导作用。
The determination of the sentencing benchmark is the basis and the key to sentencing justice. Since the sentencing benchmark objectively exists in the subconscious of experienced judges, it has not become an important content of the sentencing norms, and the imbalance of sentencing has always been questioned by the general public. Therefore, we should clearly understand the concept of sentencing basis and the basis of sentencing The necessity and the way of setting the benchmark of sentencing have become the important task of the standardization of sentencing in our country. Based on the “theory of major factors”, the method for determining the sentencing base should be based on the extent to which the victim has been infringed and be judged according to the corresponding legal consequences, that is, the setting of legal punishment. However, Sentencing benchmarks, you need to further refine the scope of statutory punishment in the legislative aspects, through the form of judicial interpretation to further clarify the standard of sentencing, and give full play to the guiding role of jurisprudence.