古典主义刑法理想在积极预防立法中的坚守与发展

The Persistence and Development of the Classical Ideals of Criminal Law in Active Preventive Legislation

古典主义的刑法理想值得守望和遵循,但当下的古典主义刑法理论面临着如何自我更生的问题。古典刑法理念具有与时俱进的传统和张力,自由刑法观与安全刑法观之间并不存在根本性的立场之争,它们的差异不过是刑法保护重心、调控范围与调控力度的程度之争。当前积极的预防主义刑法立法并未动摇现代刑法立法的基本品质,但需要防止其工具化和情绪化问题。坚守古典主义刑法理想的方案是,根据社会发展,创新和发展古典主义刑法理想的时代内涵:应将积极预防性立法观的时代诉求融入到现代刑法中来,并用刑法谦抑性原则指引和重塑积极预防性刑法观。积极预防主义刑法立法并未改变法益保护原则,但应当受到古典主义刑法理想的正确引导和合理控制。

Classical criminal law ideals are worth guarding and complying with,but the current classical criminal law theory is facing the problem of how to self-renew.The classical concept of criminal law has the tradition and tension of advancing with the times.There is no fundamental dispute between the concept of free criminal law and the concept of safe criminal law.The difference between them is just a dispute between the focus of criminal law protection,the scope of regulation,and the degree of regulation.The current criminal law legislation has not shaken the basic quality of modern criminal law legislation,but we need to prevent its instrumentalization and emotional problems.The plan for adhering to the ideals of classical criminal law is to innovate and develop the ideals of classical criminal law in accordance with social development:the times demands of the positive preventive legislation should be integrated into modern criminal law,and the principles of modest and restrained criminal law should be used to guide and reshape a positive and preventive view of criminal law.Active preventive criminal law legislation has not changed the principle of legal interest protection,but it should be correctly guided and reasonably controlled by classical ideals of criminal law.