论罪刑法定与形式法治

On Principle of Legality and Procedural Rule of Law

我国漫长的封建社会造就了我们在法律思维中对"法有限、情无穷"的顶礼膜拜,表现在司法实践中,依然存在"比附援引"的类推思维。罪刑法定原则的理念是限制权力、保障权利,从而最大可能地排除刑事司法中的恣意与专制。形式法治和形式合理性是实质法治的前提与保障,为了保护民众的预期,在当下追求刑事法治的进程中,仍然应该捍卫罪刑法定原则,信奉形式法治和形式合理性。

The long tradition of feudal society makes us abide by the thoughts that the law is limited while the facts are infinite, with obvious evidence that even in modem soeiety there is still analogy thinking in our judicial practice. The key idea of the principle of legality is limiting the power and protection of the right in order to reach an exclusion of wanton and dietatorship to the maximum extent. Procedural rule of law and procedural rationality is the real premise and basis of the substantial rule of law, so to protect people＇ s anticipation, we are supposed to insist on the principle of legality and believe in procedural rule of law and procedural rationality in the current pursuit of the rule of law in eriminal law territory.