刑事司法视角下的国民预测可能性

The Possibility of the Judgment on Their Own Behavior by Citizens Under the Perspective of Criminal Judicature

作为刑法的精神内核,罪刑法定内含预测可能性原理,意图通过明文规定的犯罪与刑罚,克己守法的法官运用形式思维严格适用法律,使民众事先能够预测自己的行为性质,保障行动的自由。然而预测可能性原理实现前提的假设被证伪,刑法规范的模糊性与法律概念的类型化,使得法官适用法律时必然适当能动。同时,法官的法律思维与民众的日常思维存在较大差异,国民难以仅通过刑事法律条文预测自己行为可能受到的法律评价。因此,预测可能性原理的实现视域必须从立法转向司法,借助具体的刑事司法判决的标杆作用,促使民众与司法职业者建立司法共识、培养民众对于司法的信赖,以真正的实现国民预测可能性。

As the core spirit of criminal law,the principle of legality implies the possibility of prediction.Provided with clear stipulations on crime and penalty,and the judges who apply the law rigidly with normalized thoughts,the citizens gain the opportunity to predict the nature of their behavior reflecting in law so as to protect the freedom of action.However,the premise of such prediction is not likely to happen.The reasons lie in that the legal rules are usually expressed intangibly and the conceptions used are always topologic.Moreover,there is a big gap on the thinking towards legal problems between the judges and citizens,thus,it will be quite difficult for the latter to predict the legal outcome of their behavior just through the provisions.Taking this into account,for the realization of the prediction,it must rely more on judicature methods rather than legislation.Standard should be set up by model cases,as a result,the citizens could reach consensus towards legal issues with the judicial staffs and attain more belief in judicature.Only in this way,can the nation make the prediction of behavior come true.