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根据《刑法》第六十三条第一款的规定,减轻处罚应当在法定量刑幅度的下一个量刑幅度内判处刑罚。本案被告人林某具有自首、立功二个减轻处罚情节,可否减二档处罚存在分歧意见。本文认为,对于职务犯罪案件,减轻处罚的限度,亦应重在规制,适用缓刑的情形,应当要从严把握,原则上应当减一档处罚,只有在确有必要时才可跨幅度减轻处罚。本案被告人林某受贿数额共计人民币30万元,远超十万元之标准,且犯罪情节一般、悔罪表现不彻底,虽有自首、立功等情节,但对其减一档处罚,即在“五年以上有期徒刑”幅度内判处即符合罪行相适应的刑法基本原则。一审判决减二档处罚,判处被告人林某有期徒刑三年,缓刑五年,属适用法律错误导致量刑畸轻,重罪轻判,适用刑罚明显不当且适用缓刑错误。
According to the provisions of the first paragraph of Article 63 of the Criminal Law, the mitigating punishment shall be sentenced to the penalty within the next range of sentencing of the legal range of sentencing. Lin defendant in this case has surrendered, meritorious service two mitigation of the plot, the possibility of second-class punishment there are differences of opinion. This article argues that in the case of duty crime, reducing the limit of punishment should also focus on the regulation and the application of the probationary case. It should be strictly controlled. In principle, the punishment should be reduced by one grade. The punishment should be mitigated only when it is absolutely necessary. . The case of defendant Lin a total amount of 300,000 yuan to take bribes, far exceeding the standard of 100,000 yuan, and the crime in general, penitent performance is not complete, although surrendered, meritorious service and other circumstances, but the reduction by a file penalty, that is, “Five-year fixed-term imprisonment” within the scope of the sentence that is consistent with the crime to adapt to the basic principles of criminal law. The first instance verdict reduced second gear punishment, sentenced the defendant Lin three years imprisonment, suspended for five years, is due to the error of the applicable law, light sentencing, felony misdemeanor, the applicable penalty was apparently inappropriate and applicable probation error.