论刑法不典型

Untypical Phenomena in Criminal Law

刑法不典型的客观存在使刑事法治统一性、确定性的理解变得错综复杂。从犯罪学视角对 75个刑法不典型现象进行实证分析 ,可以发现我国刑法中存在“总则趋轻 ,分则趋重”、“抽象趋轻 ,具体趋重”、“适用趋轻 ,法定趋重”等关系。基于规范资源的供应也应遵循市场规律的原理 ,应使刑法不典型的测量和治理更加理性、科学。

The objective existence of untypical phenomena in criminal law often complicates people's understanding of the uniformity and certainty of criminal laws. Through the empirical analysis of 75 cases of untypical phenomena of criminal law from the viewpoints of criminology, this paper reveals the tendency of heavier punishment in general provisions as compared with sub-provision, in abstract law as compared with concrete law and in the application of law as compared with legal provisions. Based on the theory that the supply of normative resources should also follow the rules of the market, the author suggests that the measurement and control of untypical phenomena should be made more rational and scientific.