刑法若干问题的宪法溯源

Several Problems of Criminal Law Origin in Constitutional Law

宪法和刑法在法现象和价值诉求上有着极大一致性。对刑法一些制度设计的正确把握和全面理解要从宪政思想中追根溯源。市民社会与政治国家的二元分立为近代刑法提供了土壤环境。国家的刑罚权来源于公民基于社会契约的授予,其中制刑权应由公民的代议机构行使。刑法的制定受到众多因素的制约,最深层的因素是公民的个人欲求。刑法应寻求"有限"与"有为"的平衡,实现人权保障机能与社会保护机能的协调。所有行使公权力的人员,都是公职犯罪的主体。

The constitutional law and criminal law are two tycoons in the public laws category together, They claim in the method phenomenon and the value up have biggest consistency. To criminal law some systems design of the right confidence and overall comprehension want to make track for a root to trace to origins from the constitutional law. Two dollar of the civil society and political state cent signed to provide the soil environment for the modern criminal law. The penalty power of the nation come from citizen contract according to the society of give to, making the penalty power among them should be exercise by the representative organization of the citizen. The establishment of the criminal law is subjected to the check and supervision of numerous factors, the most deep factor is a citizen of personal try to. The criminal law should look for＂ limited＂ and＂ capable＂ balance, carrying out the coordination that human rights guarantee function and society protect function. Pointing out all personnels who exercise a civic rights, is all corpuses of the public position crime.