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刑罚个别化思想的提出已有一百多年的历史。在这一个多世纪的时间里,刑罚个别化制度在理论与实践上都得到了长足的发展。然而,过分关注刑罚个别化是否会导致刑事立法形同虚设一直以来都是人们心中挥之不去的疑问,这样的顾虑使刑罚个别化制度长久以来发展缓慢,难以正名。本文从刑罚个别化思想的起源入手,分析了刑罚个别化与罪刑法定原则产生对立的原因,并探讨了这种对立的相对性与可融合性。
The idea of the individualization of punishment has been more than a hundred years old. For more than a century, the individualization of punishment system has made great strides in both theory and practice. However, paying too much attention to whether the individualization of penalties leads to the negligence of criminal legislation has always been a lingering question in people’s hearts. Such concerns make the system of individualized punishment a long-standing and slow development that can hardly be justified. Starting from the origin of the individualized thought of penalty, this paper analyzes the reasons why the penalty individualization is opposite to the legal principle of crime and punishment, and discusses the relativity and fusion of this kind of opposition.