刑法解释立场之疑问:知识谱系及其法治局限——一种法学方法论上的初步探讨

Position of Substantive Interpretation of Criminal Law:The Development of Its Knowledge and Historical Limits

在提倡刑法学派之争以及风险社会与法治建设初成的背景下,通过对实质的刑法解释立场之知识谱系的详细考察,可以发现,我国实质的刑法解释立场之主张与我国刑法犯罪构成的结构特点之间并不存在实质性联系。形式的与实质的刑法解释立场之间的对立,从表面上看,对刑法解释结论起决定性作用的似乎是刑法规范中的立法原意抑或客观规范目的,而根本上,则是法哲学根基与法学方法论的对立。绝对的强调尊重字面含义、注重从概念直接推导出结论的形式的刑法解释立场实质上是不存在的,以此对形式的刑法解释立场进行责难其实是一种理论上的误读。实质的刑法解释立场固然有其合理性,但方法与本体、形式正义与实质正义、主观的立法原意与客观的规范目的等范畴的对立都是实质的刑法解释立场运用中无法回避的问题。实质的刑法解释只有在形式的刑法解释结论与刑法的正义性存在根本性的冲突而又无法获得妥当性结论时,才能发挥其应有的作用。

Against the background of promoting contention of different criminal law schools and the emerging of risk society and building-up of rule of law, and through detailed examination of substantive interpretation of criminal law, one may find that there is no substantial link between the position upheld by substantive interpretation of criminal law and the structural characteristics of constitution of a crime in criminal law in China. With regard to the contradictions between the formal and substantive interpretations of criminal law, as far as the appearances go, it seems that legislative intent or purpose of an objective standard contained in criminal norms plays a decisive role in relation to the conclusions of interpretation of criminal law, whereas fundamentally speaking, it is the contradiction between the foundation of philosophy and legal methodology that matters significantly. Actually, there is no formal interpretation of criminal law that absolutely emphasizing the respect for the literal meanings and paying attention to conclusions derived directly from the concepts. As a result, any blame on the position upheld by formal interpretation of criminal law is really a kind of theoretical misunderstanding. Substantive interpretation of criminal law certainly has its merits, but it has to face contradictions of various norms, such as contradic- tions between method and thing-in-itself, formal justice and substantive justice and subjective legislative intent and objective purpose of a norm. In society full of uncertainty, in order to avoid greater social risks, the current interpretation of criminal law should pay more attention to methods and the form of criminal justice and emphasize separation of powers under the legislative system. Only when there exists a fundamental conflict between the conclusion of formal interpretation of criminal law and the justice pursued by criminal law and no proper conclusion can be made, can substantive interpretation of criminal law play its due role.