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刑法理论界一般认为,我国现行减刑制度的根据是罪犯改造情况表明其人身危险性有所减退,刑法所追求的目标已经初步实现。但是这并不能解释立功减刑的情况,且以“人身危险性”这一个具有推测性的标准作为罪犯刑罚量增减的依据,不符合决定刑罚量标准要求的确定性,也不满足刑事证据排除合理怀疑的证明标准,还违背了“责任与行为同在”的原理。从刑法第78条的规范解读来看,减刑条件之“立功表现”不以“悔罪”为前提。从法律规定和司法现状而言,减刑制度应当属于刑罚裁量制度而非刑罚执行制度,且其设置的正当根据在于对罪犯与法律暂时性合作表现的一种奖励。基于此,还应当设立减刑撤销制度以真正实现刑罚改造的目的。
The theory of criminal law generally holds that the basis for the present commutation system in our country is that the criminal remodeling situation shows that its personal danger has been diminished, and the objective pursued by the criminal law has been initially realized. However, this does not explain the situation of meritorious service commutation of sentence, and uses the speculative criterion of “personal danger” as the basis for the increase or decrease of the criminal penalty, which does not meet the certainty of determining the standard of penalty amount nor satisfies the criminal Evidence to rule out reasonable suspicion of proof standards, but also contrary to “responsibility and behavior in the same ” principle. Judging from the normative reading of Article 78 of the Criminal Law, the premise of “meritorious performance” of the condition of commutation of a sentence is not based on “repentance ”. In terms of legal provisions and judicial status quo, the commutation system should belong to the system of penalty rather than the system of punishment, and its justification is based on a reward for the temporary cooperation between the criminal and the law. Based on this, we should also set up a revocation of the system of revocation of the penalty to achieve the purpose of reformation of the penalty.