抢劫罪既遂、未遂的司法解释质疑——兼论司法解释的现实得失与应然走向

Challenge to the Judicial Interpretation of Accomplished and Attempted Crime of Robbery——Also on the Realistic Gain and Loss of Judicial Interpretation and its Appropriate Trend

最高人民法院的司法解释将具有加重结果的抢劫罪一律认定为既遂状态,实际蕴含了重刑主义倾向,同时也凸现了其作为高端优位者在刑法理论界本来极有争论的学术领域做出裁判性结论的自信色彩,这多少表明中国今天的刑法理论依然无法拆卸实践的重轭,从而取得理论指导实践的地位。我们有责任重新审视在中国的刑事法治建设过程中如何树立刑法典的权威地位。作为高端权威的司法解释有所紧缩,是促使和形成每个法官能够独立钻研解读刑法典、能够与立法原意进行直接对话的必要的条件,也是刑事法治社会逐渐成熟的必要条件。

The judicial interpretation of the Supreme People＇s Court determines uniformly the crime of robbery with the aggravated result as the accomplished state, which in fact contains the inclination of severe punishment, and at the same time shows clearly its self-confidence as a superior in the hierarchy in reaching adjudicative conclusions in the academic areas where there are great debate in the theoretical circle of criminal law. This more or less indicates that it is still impossible for the Chinese theory of criminal law today to get rid of the shackle of practice so as to achieve the position of theory guiding practice. We are responsible for the reexamination of how to establish the authoritative position of criminal code in the process of construction of criminal rule of law in China. Reduction of judicial interpretation as the highest authority is the essential condition of urging every judge to be able to independently study intensively and analyze criminal code and to be able to have direct conversations with the legislative intent, and it is also the essential condition for the society of criminal rule of law to gradually become matured.