宪政视野中的中国刑法解释体制改革

Reform in interpretation system of criminal law in China——from the perspective of constitutionalism

中国现行的刑法解释体制包括统一解释和法律适用解释两部分,其中统一解释体制是一种多元并立、各国家职能部门"齐抓共管"的格局。从合宪性的角度来看,只有全国人大常委会、最高人民法院的刑法解释符合宪法规定,而最高人民检察院、国务院及其职能部门以及高级人民法院的刑法解释都属于违宪解释。而从宪政理念的角度来看,全国人大常委会解释刑法是对人民主权原则的误读,人大常委会不应成为刑法统一解释机关。最高法院统一解释刑法符合宪政原理,但应坚持被动的、结合个案的释法模式。在具备司法(法官)独立制度的前提下,应赋予法官以法律解释权。

The current interpretation system of China＇s so-called uniform interpretation is made up of various criminal law consists of uniform and judicial interpretations. The governmental sectors and departments. From the perspective of constitutionality, only the interpretations made by the National People＇s Congress and the Supreme Court are lawful, while those by others including the Supreme Procuratorate, the Central Government and its sectors or departments are unlawful. From the perspective of constitutionalism, that the Congress is empowered to interpret law does actually misunderstand the rule of popular sovereignty resulting in that the criminal law should not have been interpreted ultimately by the Congress. According to the rule of constitutionalism, the criminal law shall be interpreted by the Supreme Court passively case by case. In case of judicial independence, judges shall be empowered to interpret the law.