酌定量刑情节是法律未作出明确规定而由裁判者根据刑事法律政策在司法实践中总结且在裁判中酌情予以灵活适用的量刑情节。在现阶段全面废止死刑不太现实的情况下,要在刑事诉讼各个环节贯彻宽严相济的刑事政策,酌定量刑情节成为最为便捷的切入点和突破口。在发挥酌定量刑情节在死刑限制中的积极作用的同时,如何消解其与刑法文本及社会认同之间的紧张关系,避免量刑的随意性,成为立法、司法环节均应思考和妥善解决的问题。 The discretionary circumstances of sentencing is a sentencing circumstance which is not clearly stipulated by the law but is summarized by judicial authorities in judicial practice according to criminal law and policy and flexibly applied in the referees as appropriate. Under the circumstances that it is unrealistic to abolish the death penalty at the present stage, it is necessary to implement the criminal policy of temper justice and strictness in all aspects of criminal prosecution and to decide the circumstances of sentencing as the most convenient entry point and breakthrough point. At the same time of playing the positive role of the discretionary sentencing circumstances in the limitation of death penalty, how to resolve the tension between the criminal law text and the social identity and avoid the arbitrariness of the sentencing has become a problem to be considered and properly solved in both the legislative and judicial aspects .