刑法形式解释论与实质解释论之争

Reflection on the Substantive Interpretation of Chinese Criminal Jurisprudence

在我国刑法学领域,形式解释论与实质解释论的实质分歧不在于要不要法律的实质判断标准,而在于在什么理论范畴中、以什么方式讨论实质判断标准,主要体现在犯罪成立模式构造、形式判断与价值判断的位序、解释原则三个方面的差异。从实际效果看,和形式解释论相比,当前学者主张的实质解释大体上是一种入罪的扩张性解释而非出罪的限制性解释。我国现有刑法文化生态环境决定了学界大部分人在客观上不可能抛弃实质解释论的立场,但从社会理论的现实批判功能以及学派意识的角度出发,主观上则不宜提倡"实质解释论",而应提倡"形式解释论"。

There does not exist a debate between classical school and new school in Chinese crimi- nal jurisprudence. However, there is a debate between the formal and substantive interpretation of criminal law, which is different from the formal and substantive interpretation debate in Ger- man or Japanese criminal law. The substantive interpretation in China is concerned with all re- quirements for the constitution of a crime, while it is only concerned with Tatbestand in Germany and Japan. The substantive interpretation advocated by Chinese scholars refers to the interpreta- tion of criminal law, while in Germany and Japan, it refers to the Tatbestand, no more than the punishment regulations. At last, in German and Japanese criminal law, the theory for formal con- stitution of a crime and formal interpretation comes first, and then the substantive ones, while Chinese criminal law is on the contrary. Many views of the substantive interpretation are questionable. They believe that formal in- terpretation group in our criminal law theory holds absolute dominance, but the formal interpreta- tion is still in a weak position. They hold that the formal interpretation ignores the substantive justice, but the essential differences between the two schools lie in the ways to discuss the sub- stantive standard of judgment, such as the constitutive mode of crime, the ranking of formal judg- ment and value judgment, and the principles of interpretation. They think that the substantive in- terpretation makes use of the substantive side of the principle of Legally Prescribed Punishment for a Specified Crime to take restrictive explanation, but their interpretation tends to criminaliza- tion but not decriminalization. They argue that the basic defect of formal interpretation is the evi- table consequence of ＂unjust law is still law＂, but the formal interpretation is not the resource of the rule by evil law. The substantive interpretation, intrinsically consistent with the materialism of Chinese tradi- tional culture, is yet the leading school in China. Based on our cultural environment, Chinese scholars can not abandon the material interpretation, but according to the critical function of the social theory and the awareness of school formation, the formal interpretation should be promoted.