故意杀人罪的死刑裁量基准——“丁汉忠案”的文本梳理和法理审视

目前我国有关故意杀人罪中死刑裁量因素的审查难有真切、统一的基准,而在司法实践中对相关刑法条文含义的理解和阐释较为草率;最高人民法院的指导性案例体现的裁判趣旨未得到充分领会;各量刑因素的作用莫衷一是、标准不一,“估堆”量刑的困境萦绕其间,因而须探索故意杀人罪中相对合理的死刑裁量基准。具体而言,须区分各量刑因素的轻重、位阶,建构以责任刑为主、预防刑为辅的死刑裁量基准。至于是否入围死刑圈主要是仰仗责任刑阶段的判断。若责任刑阶段均是从严因素,基本会入围死刑圈的审查。死刑圈内的三种准刑种如何抉择,取决于对行为人的人身危险性判断。在预防刑阶段若均是从宽因素,一般死缓的判决即可满足要求;若从宽因素和从严因素交错,死缓限制减刑的判决基本可满足要求;若只有从严因素,则有判决死刑立即执行的可能。

Sentencing Standards for Death Penalty of Homicide--Textual Inspection and Legal Review of the Ding Hanzhong Case

At present,there is no clear and consistent benchmark for the death penalty in China.Firstly,there are sloppy analyses and interpretations of the criminal law code in the judgement;secondly,the keynote of the Guiding Case issued by the Supreme Court had not been reflected;last but not least,the role and the standards of various sentencing factors is inconclusive,and the dilemma of estimated sentencing remains unsolved.Therefore,its verdict is worthy of deliberation.As far as judicial practice is concerned,the severity of each sentencing factor should be distinguished with degree and stage.The path of death penalty discretion should be constructed based on responsibility of punishment and prevention of punishment.It is only limited to the serious factor that the death penalty can be immediately executed.If there are cross of the serious factor and mild factor at each stage,it is necessary to distinguish the stage of the sentencing factor.In the stage of responsibility of punishment,the sentencing factor should be more important than those in other stages,which also affect the choice in suspended death penalty with restrictions on commutation of sentence and suspended death penalty.