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现行累犯通说不但不能为累犯制度提供正当性和合理性,反而会削弱其法定性和正当性。累犯主观恶性既不应因再犯而认定其恶意程度超出其前次犯罪,也不应超出初犯者;认为再犯基于无视前次刑罚体验与后罪刑罚从重前后矛盾:既然前次刑罚无益于预防,如何能保证本次从重处罚有效?因为两个刑期本质完全一样。当再犯率和初犯率未确定时,就不能确定前者高于后者,也不能无根据地确信累犯后果重于初犯。累犯通说之根基只能是经由实证调查所得数据基础上所做的合理解释。
The current recidivist said not only failed to provide legitimacy and rationality to the recidivist system, but would undermine its legality and legitimacy. The subjective viciousness of recidivism should neither be determined by recidivism nor its malicious intention beyond its previous crime, nor should it exceed the initial offender; that recidivism is based on disregard of the previous penalty experience and after-crime penalty from the contradiction: Since the previous penalty is not conducive to prevention, How can we ensure that this heavy punishment is effective? Because the two sentences are exactly the same in essence. When the recidivism rate and the initial recidivism rate are not established, it can not be determined that the former is higher than the latter, and it can not be unfounded that the consequence of recidivism is heavier than that of the first offense. The foundation of recidivism is only a reasonable explanation based on the data from the empirical investigation.