论刑法司法解释溯及力的三个问题

Retroactivity of Judicial Interpretation of Criminal Law

本文对刑法司法解释的溯及力所涉及的三个方面问题进行了探讨和剖析,即:(一)刑法司法解释对所解释的刑法规范颁布以前的案件是否有溯及力;(二)刑法司法解释对所解释的刑法规范实施以后自身颁布以前的案件是否有溯及力;(三)刑法司法解释对解释的刑法规定实施以后自身实行以前。已有的生效司法解释正在实施,新的司法解释是否有溯及力。笔者主张,在这三种情况里都应该坚决贯彻从旧兼从轻的原则,并提出了立论依据。

In this article, the author discusses retroactivity of judicial criminal law, which includes three problems. Firstly, does judicial interpretation of criminal law has retroactivity to the cases which happened before the interpreted rules of criminal law are promulgated? Lastly, does judicial interpretation of criminal law has retroactivity to the cases which happened after the interpreted rules of criminal law are promulgated but before the interpretation itself is promulgated, and at the same time the former interpretation is in effect.This is to say, does the latter interpretation has retroactivity? The author advocates that we should apply to the principle of the old law with the exception of a less punishment in the new law, and develop the basis of the opinion.