论刑法谦抑之本质

On the Essence of the Restraining Criminal Law

刑法谦抑性主要经由日本刑法学理论导入中国。刑法谦抑性概念产生于刑法客观主义与主观主义的争斗过程中,旨在维护个人自由同时防止刑法异化成为恣意侵害人权的工具,其理论渊源根植于欧陆启蒙主义的刑法思想理念。刑法谦抑性本质上是人们对刑法的一种价值诉求,是一种理念、思想或精神。

The concept of the restraining criminal law is mostly introduced from the theory of Japanese criminal law. It grows out of the opposing and struggling between Subjectivism and Objectivism of the criminal law theory, aiming at protecting the citizens＇ rights and freedom by constricting the application of the criminal law. Its theory origin can be traced back to the Enlightenment and criminal rationalism. The restraining criminal law is pursued as a kind of value to the criminal law by people, and it＇s a kind of idea, thought or spirit in essence.