试论人权保障一般优先

On the General Priority of the Protection of Human Rights

人权保障是近些年来备受我国刑法学界关注的重大问题。应坚持总体上追求人权保障和社会保护并重的原则。当两目的发生冲突时,人权保障通常应优先于社会保护;特殊情况下广大公众的利益甚至代表广大公众利益的国家利益受到极其严重的威胁之时,人权保障也应让位于社会保护。只有如此,才能获得民众的广泛认同并确立公民对刑法的忠诚信念,最终树立法律至上的权威。

In recent years the protection of human rights has become a major concern of Chinese scholars in academic circle of criminal law. Emphasis should be put on both safeguarding human rights and maintaining social order at the same time. When there is conflict between these two purposes, the protection of human rights should have the priority. There is an exception when the interests of the overwhelming majority of the people or national interests that represent the benefit of the people at large are seriously threatened, the protection of human rights should give way to the protection of social order. Only in this way can the law obtain populace＇s approval as well as their faith, and in the end establish the superiority of law.