刑法教义学的实践导向

The Practical Orientation of the Dogmatics of Criminal Law

刑法教义学的实践性越强,其可验证性及可信度就会越高,但我国刑法学解决实践难题的能力还有很大提升空间。实践导向的刑法教义学与可感性、可视性、可接受性直接挂钩。刑法教义学必须将客观上可把握的事实作为观察对象,直面真实案例和实践问题,顾及社会发展状况,注重对实务难题的具体解决,才能增强其判断基础的可感性;刑法教义学必须建构可以多层次、多角度检验的体系,展示犯罪判断过程,明确反对“以刑制罪”,才能增强其思考过程的可视性;刑法教义学易于为司法实务人员所理解,裁判结果符合一般人的社会生活经验、获得公众认同,才能展示其结论的可接受性。为满足可感性、可视性、可接受性的要求,刑法教义学就不能仅对概念、抽象原理进行罗列。刑法学者在从个案中获得丰富素材之后,将问题的解决置于体系性思考框架中妥当地进行处理,就是为建构具有实践导向、符合功能主义要求的刑法教义学作贡献。顾及事实是刑法教义学的基础,解决难题则是其归宿,纯理论的刑法教义学的存在意义有限,不宜将刑法教义学的科学性与实践性对立。

The more practical the dogmatics of criminal law is, the higher its verifiability and credibility will be, but there is still much room for improvement in the ability of criminal law to solve practical problems in our country. Practice-oriented pedagogy of criminal law is directly linked to sensibility, visibility and acceptability. The dogmatics of criminal law must take the facts that can be grasped objectively as the object of observation, face the real cases and practical problems directly, take into account the situation of social development, and pay attention to the concrete solution of practical problems in order to enhance the sensibility of the basis of its judgment. The dogmatics of criminal law must construct a system that can be tested from multiple levels and angles, show the process of criminal judgment, and clearly oppose "crime by punishment" in order to enhance the visibility of its thinking process. The dogmatics of criminal law is easy to be understood by judicial practitioners, and the result of the judgment is in line with the social life experience of ordinary people and is recognized by the public in order to show the acceptability of its conclusion. In order to meet the requirements of sensibility, visibility and acceptability, the dogmatics of criminal law can not only list concepts and abstract principles. After obtaining rich materials from individual cases, criminal law scholars properly deal with the problem in the framework of systematic thinking, which is to contribute to the construction of the practice-oriented doctrine of criminal law in line with the requirements of functionalism. Taking into account the facts is the basis of the doctrine of criminal law, and solving difficult problems is its destination. The existence of pure theoretical doctrine of criminal law is of limited significance, so it is not appropriate to oppose the scientific nature and practicality of the doctrine of criminal law.