论刑法的有限性

On the Limitation of Criminal Law

所谓刑法的有限性,是指刑法的调控范围以及刑罚手段的运用是有限的,而不是无穷的。具体而言,刑法的有限性又可以体现在两个方面:一是刑法触角的有限性,二是刑罚发动的有限性。所谓刑法触角的有限性,又称刑法调控范围的有限制性,是指刑法调控的对象必须是在行为人意识支配下实施的严重危害社会的行为。刑罚发动的有限制性主要体现在三方面的条件上:第一,刑罚发动的首要条件就是必须有刑事案件的发生;第二,刑罚发动的实体法条件是刑法的规定性,该条件通常需要通过"罪刑法定的要求"和"犯罪构成要件的限制"两个方面来实现;第三,刑罚发动的程序性条件是指非经法定程序,不得剥夺任何人的生命与自由以及其他合法权益。

The limitation of criminal law means that the scope of criminal law and the application of penalty are limited, but not unrestricted. To be specific, the limitation of criminal law is manifested as the following ： one is the limitation of the approach of criminal law; the other is the limitation of the application of penalty. The former, in other words, the limitation controlled by criminal law, means that the object criminal law has effect on must be the acts which do much harm to the society under the control of somebody. The latter is manifested as the following three conditions： firstly, the premier condition is that some criminal case has appeared; secondly, the substantive condition is prescribed by criminal law and is usually completed by the requests from the principle of a legally prescribed punishment for a specified crime as well as the limitation of the constitution of a crime; thirdly, the procedural condition requires that nobody′s life, freedom, and other lawful rights and interests can be forfeited without legal procedures.