刑法理念的司法化与人权保障

On the Judicature of the Concept of Criminal Law and the Protection of Human Rights

刑法的发展趋势和最终目的是保障人权,法官是法律和生活的连接点,要发挥刑法保障人权的精神和理念,关键是法官要在司法活动中贯彻保障人权的司法理念。法官首先要树立罪刑法定的司法理念,在审理之前假定被告人无罪,在认定犯罪时坚持形式的理性而非实质的理性,在刑法适用有疑难时作出有利于被告的判决。

The trends and ultimate aim of Criminal Law is to protect human rights, and the judge is the connection point between law and life. If we want to comply with the spirit and philosophy of criminal law in the protection of human rights, the key is to implement concepts of the protection of human rights in the judicial activities of judge. The judge must first establish the judicial philosophy of legality, assume innocence of the accused and insists the forms of reason rather than substantive rationality at the time of the offense identification. When having difficulties in appling the Penal Code, they must have judgement in favor of the accused.