以刑制罪的知识巡思与教义延拓

Intellectual Thought and Teaching Extension of Prohibiting Crime through Penalty

以刑制罪始于定罪与量刑的失衡,日臻成型的知识体系已指向罪刑关系的实践模式、刑事政策及刑法解释等深层问题,具有以反思罪刑关系为起点、重在纠偏罪刑失衡、适用的慎重、范围的特定与鲜明的政策导向等特征,并面临适用空间有限与范围模糊、涉嫌与罪刑法定抵牾、严重依赖刑法解释与刑事政策、与以罪制刑和刑事责任的关系不明等教义化困局。为整体夯实教义基础与优化适用机制,以刑制罪应作为动态罪刑关系的常态适用与优化模式,消解理论与司法中似是而非的地位难题;应与刑事政策保持合理界限,破解过度倚靠刑法解释的适用路径,以求功能与运作机制的正本清源;应确认和激活刑罚有效性的逆向检验功能,促成刑事归责与刑罚范畴形成互建性的动态合作机制;应与刑事立法及完善保持良性互动关系,契合罪刑法定主义追求的实质正义要求。

Prohibiting crime through penalty that derived from the judicial sentencing imbalance has been generally ac cepted in practical knowledge, and eurrently turns to concentrate on the relationship between crime and penalty, criminal policy and criminal interpretation. Prohibiting crime through penalty which focuses on correcting the imbalance status between crime and penalty started from a deep and overall reflection on the relationship between crime and penalty with consideration of criminal policy, while also facing several challenges such as limited application scope, the confrontation with the legal doctrine of le- gality, fuzzy application object, intensive dependence on criminal policy and criminal interpretation, unknown relationship be- tween criminal responsibility and ＂Crime Restricts Penalty＂. Prohibiting crime through penalty should be a normal application mode with reasonable boundary from criminal policy and criminal interpretation. The validity of penalty as a positive and dialec tical factor would carefully examine and hugely promote the dynamic operation mechanism of mutual restraints between the cat egories of criminal responsibility and penalty. It is reasonable to keep effective interaction with legislation improvements so as to maintain close connection with the principle of legality.