刑法的困境与宪法的解答——规范宪法学视野中的许霆案

The Dilemma of Criminal Legal Dogmatic and a Constitutional Answer

在许霆案的讨论中,刑法教义学所面临的尴尬处境只有通过宪法教义学的介入才能够得以消解,即必须反思刑法第264条特殊加罚条款的合宪性问题。在现代社会,相较于其他行业的法人组织,金融机构对于国民经济与社会的稳定繁荣而言更为重要。由此,在刑法上给予金融机构"适当的"特别关照应当被允许。但是,无论从比例原则还是从体系解释的角度看,为盗窃金融机构数额特别巨大的行为所设定的刑罚,在只限于死刑和无期徒刑这一点上,从立法目的的角度上已经难以充分说明,即为了达到立法目的超过了必要的限度,因此不能被认为是基于合理依据的差别对待。争议条款违反了宪法平等权规范,应属无效。

The discussion of Xu Ting Case has once focused on the question of whether Xu Ting＇s behavior constitutes theft or not. In the view of criminal legal dogmatic, it is a typical theft of financial institutions, for his behavior is secret and ATM is of course one part of financial institutions. So the first instance condemned Xu Ting to life imprisonment. But to the public opinions, such punishment is too heavy to be accepted, and the second instance of Xu Ting Case is a concession of criminal jurisdiction affronting public opinions. From the standpoint of criminal legal dogmatic, there is no positive law basis to use the theory of probability of anticipation to mitigate Xu Tinges criminal liability. Other scholars argue that the special commutation system in Chinese Criminal Law can be applied, or argue to differentiate the sentencing situations of ＂extremely huge amount＂ in general theft and theft of financial institutions, but such proposals are not very successful. The premise of criminal legal dogmatic is the trust in the justification of criminal law in force, so such proposals are the only solutions it can provide. This article thinks that, the dilemma of criminal legal dogmatic can be resolved only by the intervention of the constitutional legal dogmatic, which means that we should check the constitutionality of the aggravation article of theft in Criminal Code, i. e. § 264. In modern times, as to the stabilization and prosperity of national economy and society, financial institutions play a more and more important role than other professions. The security of the property of financial institutions, especially of the banks, is the footstone of the stabilization of the national economy. So it can be permitted to give financial institutions special and suitable consideration in criminal law. But from the view of the principle of proportionality and the systematic interpretation, we must conclude that the aggravation article of theft in the Criminal Code, i. e. § 264, which provides only death or life imprisonment as the penalties, goes too far beyond the legislative purpose, and thus is invalid for violating § 33, para. 2 of the Constitution.