刍议我国刑事法治逻辑悖论的若干问题

On the Issues of Logical Paradoxes of the Rule by Criminal Law in China

法律离不开逻辑,逻辑贯穿法律始终。法律的严谨规范源自于逻辑的严密,但是由于对价值观念下的是与非的过度追求,导致了刑事法律体系与适用问题上的逻辑缺位。本文以我国刑法对于贪污罪与受贿罪法定刑的并轨制规定、司法解释中对于网络空间"寻衅滋事"有关规定,以及法律适用中的"量刑反制定罪"理念为例,从法律逻辑的视角切入,综合论证法律不能在摒弃逻辑规则的前提下追求价值正确。良法善治是法治的根本追求,一个良善之法首先应当满足逻辑理性的标准与要求,所有的法律思维决策都要求遵循逻辑的基本规则,此乃社会主义法治理论的应有之义,也是建设社会主义法治国家的必然要求。

Law is inseparable from logic, which runs through the whole process of law. The strict standard of law originates from the strict logic, but due to the excessive pursuit of right and wrong under the concept of value, it leads to the absence of logic in the criminal legal system and application. In this paper, the Criminal Law of our country for the crime of corruption and bribery legal punishment combined system provisions, judicial interpretation for cyberspace "provocation"related provisions, as well as the application of law in the"sentencing against conviction"concept as an example, from the perspective of legal logic, a comprehensive demonstration of law can not abandon the premise of logical rules to pursue correct value. Good law and good governance is the fundamental pursuit of the rule of law. A good law should first meet the standards and requirements of logical reason. All legal thinking and decision should follow the basic rules of logic, which is the due meaning of the socialist theory of rule of law and the inevitable requirement of building a socialist country ruled by law.