当下中国刑事立法应当如何谦抑?——以恶意欠薪行为入罪为例之批判性分析

The Restraint That Should be Exercised by Chinese Criminal Legislation:A Critical Analysis of Criminalization of Act of Malicious Back Pay

晚近以来我国刑事立法未能有效地实现刑法谦抑主义。在吸收密尔(Mill)损害原则、帕克(Packer)的刑事制裁界限理论及德日法益理论等合理内核基础之上,可以考虑从如下消极层面回答当下中国刑事立法如何实现刑法谦抑主义的问题,即刑法不应成为替代政府管理职能的"社会管理法";防范和治理严重社会危害行为的"危害防治法";缺乏公众认同仅体现立法者意志的"立法者的法";未穷尽其他措施即予启动的"最先保障法"以及难以有效执行的"纸面上的法"。恶意欠薪行为的入罪最为典型地违背了上述标准,其入罪的正当性合理性值得深刻反省。其入罪后存在的难以启动司法程序等实际问题极有可能使之成为无助于解决薪酬支付纠纷的"稻草人"罪名。

In recent years, the virtue of restraint has not been effectively practiced in criminal legislation in China. On the basis of drawing essence from Mill＇s rule of harm, Packer＇ s theory of boundary of criminal sanctions and legal interest theory upheld by German and Japanese scholars, questions relating to the restraint that should be exercised by criminal legislation nowa- days may be answered from the following negative angles. That is, criminal law should not become ＂social administration law＂ with government＇ s role in administration being replaced, ＂harms pre- vention law＂ aiming at prevention and control of acts seriously harming society, ＂legislators＇ law＂ that lack of the public＇ s acknowledgement while demonstrating the will of legislators only, ＂the first law＂ that being relied upon without exhausting other measures and ＂law on paper＂ with no ef- fective implementation at all. Criminalization of act of malicious back pay serves as the most typi- cal example in which all the above-mentioned tests have been violated, the justification of its crim- inalization, therefore, does warrant our in-depth introspection. Further, several practical prob- lems, such as the difficulty to initiate judicial proceeding after the criminalization of the act, may turn it into ＂scarecrow＂ crime without any help to resolve disputes over back pay.