重构罪刑法定原则

Reconstructing the Principle of Legality

罪刑法定原则,作为科学主义和理性主义的产物,受制于时代变迁和理论预设,在实践中并未充分发挥自由保障价值,在惩罚犯罪的确定性方面也不断动摇。即使不断面临冲击,作为现代法治体系的重要原则,罪刑法定原则也应当得到坚持和维新。首先,实定法原则受到实质法论的冲击,不具法律形式的其他渊源成为事实上的罪刑依据。基于此,有必要重申实定法的法源专属性。其次,刑法文本的可能文义边界无法从经验上清晰划定,但不能因此否定文义边界,而应当放弃经验事实的客观边界设定,进行规范性边界的划定与证成。最后,应当承认和接纳司法的明确性责任,作为立法明确性的补充,并构建立法明确和司法明确的双层明确性体系。其中,刑事立法的明确性,应当从行为指引和司法限制两个角度构建标准。刑事司法的明确性,则要从立法文本出发,通过建立立法文本的次级一般性规则,对立法文本进行具体化,使立法文本得以不断接近具体特定的案件事实,最终建立立法文本和案件事实的涵摄关系。

The principle of legality, as the outcome of scientism and rationalism, is subject to changes in the times and in theoretical presuppositions;it has not been given full play as the protector of freedom, and constantly wavers in terms of the certainty of punishing crimes. As an important principle of the modern rule of law, the principle of a legally prescribed punishment for a specified crime should be upheld and reformed even if it is affected by constant conflicts. Firstly, the principles of positive law are affected by the theory of substantive law, while other sources that do not have a legal form become the basis of factual criminal evidence. Thus, it is necessary to reiterate the specificity of the source of positive law. Secondly, although the possible boundaries of criminal law texts cannot be clearly defined empirically, they cannot therefore be gainsaid. Instead, we should abandon the objective boundaries of empirical facts and delimit and demonstrate normative boundaries. Finally, we should recognize and accept explicit judicial responsibility as a supplement to legislative clarity, and build a two-layered system with both legislative and judicial clarity. In particular, we should construct standards for the clarity of criminal legislation in terms of the two approaches of behavioral guidance and judicial restriction. The clarity of criminal justice should start from legislative texts and specify them through the establishment of the secondary general rules, so that they can continue lessening their distance from specific case facts. Ultimately we should establish a relationship that subsumes the texts and the facts of the case.