从压制型刑法到自治型刑法——兼论我国刑罚制度的完善及合理适用

From Criminal Law of Suppression to Autonomic Criminal Law:On the Forming of our System of Punishment and its Proper Applications

与政治上专制相对应,人类社会早期的刑法,其干预广泛,裁判者自由裁量权大,法律道德主义盛行,刑法呈现压制型特征;近代以降,自治型刑法逐渐成为主导性的刑法模式,在观念、功能、原则、规则、司法运作等方面呈现出不同于压制型刑法的特点。我国当下刑法正艰难地从压制型刑法走出,其艰难表现为观念层面的压制型,原则、规则层面自治型的不彻底性。于是,在以法治国背景下,建构自治型刑法当是我们的选择。

Corresponding to political autocracy, the criminal law took on the pattern of suppression and characteristics of great intervention, great power of free judge, population of legal morality in the early history of human society. Since modern era, the criminal law of autonomy is becoming the dominant style of criminal law, and it takes on new characteristics, which is different from criminal law of suppression, in idea, effect, principle, regulation, and judicial implementation. Now our criminal law is changing from suppression into autonomy arduously, it is suppressive in idea and it is not autonomic in principle and regulation, so it is our choice to form our autonomic criminal law against the context of rule by law.