罪刑法定的实质侧面:起源、发展及其实现——一个学说史的考察

The Substantive Dimension of the Principle of Legally Prescribed Punishment for a Specified Crime:Its Origin,Development and Implementation

罪刑法定的实质侧面,渊源于美国宪法中正当程序条款由程序内涵到实体内涵的宪政实践,成形发展于二战后深受美国宪法影响的日本,在我国也经受了一个由知之甚少到广为接受的过程。罪刑法定原则发展出实质侧面的内涵,乃历史的形成而非人为的割裂;罪刑法定实质侧面要求禁止处罚不当罚的行为,实质解释论与形式解释论虽都能实现罪刑法定实质侧面内容适正性的要求,但实质解释论的出罪过程更能充分发挥构成要件的界限功能,符合该当性判断与违法性判断的功能与本质,因而更能实质地保障人权。

Originated from the due process provided in American Constitution, the substantive dimension of the principle of legally prescribed punishment for a specified crime actually developed in Japan, the country being greatly influenced by American Constitution, after the World War II. During the practice of constitutionalism in the US, the due process had experienced the process from procedural to substantive connotations. In China, we have also experienced a process from one in which few has had knowledge of the principle to one that the principle has become widely accepted. The shaping of the substantive dimension of the principle, thus, is the natural development of history, rather than a man-made division of the concept. The substantive dimension of the principle of legally prescribed punishment for a specified crime prohibits punishment for act that does not deserve the punishment. Though both doctrines of substantive and formal interpretations can meet the requirement of appropriateness of the substantive connotation of the principle, yet the process of decriminalization of substantive interpretation can play a much better role in determining the limits of constructive conditions and is in conformity with the function and