对《刑法》第37 条的新诠释——以污名惩罚与自然惩罚为基础

New Interpretation of Article 37 of the Penal Code: Based on Stigmatization and Natural Punishment

Penalties for criminal defendants include stigmatization, natural punishment, and criminal punishment. The principle of conviction but exemption from criminal punishment is that the sum of stigmatization punishment and natural punishment is approximately equal to the total amount of punishment the defendant should receive. In the context of discretionary non-prosecution, pre-trial detention is a kind of natural punishment. If the sum of the natural punishment and the stigmatization caused by a guilty verdict exceeds the total amount of punishment the defendant should receive, discretionary non-prosecution should be adopted to safeguard human rights. The introduction of stigmatization and natural punishment leads to a better understanding about the application logic of Article 37 of the Penal Code. At the same time, considering Article 37 of the Penal Code as an independent basis for exemption from punishment helps the legal norms to accommodate stigmatization and natural punishment. It is not hampered by dogmatics and can help bridge the “Liszt divide” and achieve a better regulation of misdemeanors.

对刑事被追诉人的惩罚主要包括污名惩罚、自然惩罚与刑罚三类。对被追诉人免予刑事处罚的原理是污名惩罚与自然惩罚之和大致等于应受惩罚总量。在酌定不起诉语境下，审前羁押属于自然惩罚，若有罪宣告招致的污名惩罚与自然惩罚之和明显超过了被追诉人应受的惩罚总量，则应当作出酌定不起诉决定以保障人权。引入污名惩罚与自然惩罚可以更好地理解《刑法》第37 条的适用逻辑；同时，将《刑法》第37 条作为独立免刑依据有利于法规范收容污名惩罚与自然惩罚；其既在教义学上不存在阻碍，又能助力于贯通“李斯特鸿沟”，更好地实现轻罪治理。