罪刑法定原则下类推解释的适用

The Application of Analogy Construction on the Principle of Legally Prescribing Penalty

在由单纯的形式罪刑法定主义向实质的罪刑法定主义转变的过程中,类推解释经历了由最初的完全被禁止到适当的允许的艰难过程。实质罪刑法定主义注重法之内在价值,深入到实体内容中去考察刑法规范的妥当性,同时两大法系的逐步融合也为类推解释的发展提供了更大的空间。

In the process of the principle of legally prescribing penalty transforming from pure in form to in fact, analogy construction had experienced a difficult course from initial being forbidden totally to being permitted properly. The principle of legally prescribing penalty in fact pay more attention to the inherent value of the law, and deep into the entity content to examine the norm of criminal law. Meanwhile the integration of two legal systems also offers the larger space for the development of analogy construction.