交通肇事罪司法解释中关于赔偿能力作为定罪量刑考虑因素这点引起了学者的较大争议但笔者认为其有正当性合理性。通过传统刑法理念及恢复性司法等新刑事理念的分析,笔者认为:首先其没有违反公平正义原则和犯罪的基本原理,相反却给肇事者提供了重返社会的途径,符合恢复性司法理念恢复了受损的社会关系,同时符合我国宽严相济的刑事政策要求。 Traffic Judicial Interpretation of Judicial Interpretation on the ability to make a judgment as a penalty to consider the factors that caused considerable controversy scholars, but I think it is justified and reasonable. Through the analysis of new concepts of criminal law such as traditional criminal law and restorative justice, the author thinks: First of all, it does not violate the principle of fairness and justice and the basic principle of crime. On the contrary, it provides perpetrators with ways to reintegrate into society and is in line with the concept of restorative justice Damaged social relations, at the same time meet the requirements of the criminal policy of China’s temper justice and mercy.