警醒刑法学中的过度类型化思维

Be Vigilant Against Excessive Category Thinking in Science of Criminal Law

在刑法学中,类型化思维本来是必要的。但是,轻视乃至无视概念式思维容易形成过度类型化思维。刑法学中的过度类型化思维模糊事物的质的区别或事物的界限,而倡导以"量"的过渡来认定事物的类型。刑法学中的过度类型化思维在容易助长过度司法能动主义之中而有着破坏罪刑法定原则和危及刑事法治和整个法治之险。因此,在刑法学中,过度类型化思维需要概念式思维予以节制,以达成概念式思维和类型化思维的并重,从而更好地助益于刑事法治和整个法治。

In the science of criminal law, category thinking is necessary originally. However, underestimating or disre- garding concept thinking may cause excessive category thinking easily. The quality distinction between the two is obscured, while the category of a thing is proposed to be maintained in quantity transition of it in excessive category thinking in science of criminal law. Excessive category thinking in science of criminal law may encourage excessive judicial activism easily,which may destroy principle of a legally prescribed punishment for a specified crime and danger criminal rule of law and the whole rule of law. Thus, excessive category thinking needs to be moderate by concept thinking to lay equal stress on the two kinds of thinking, which is of great value to criminal rule of law and the whole rule of law in the science of criminal law.