法条竞合“禁止向一般条款逃避”之提倡——兼与张明楷教授商榷

Interpretation of Criminal Laws Is “Forbidden to Escape to the General Articles”——Discuss with Professor Zhang Ming-kai

在法条竞合的情况下,法律适用采用"重法优于轻法",类似民法上的"向一般条款逃避"。从民刑比较而言,刑法的形式理性更高,刑法适用更应禁止"向一般条款逃避";从法律解释看,格式合同尚且作出对提供文本一方不利的解释,刑法犹如国家与国民订立的格式合同,亦应作出对国民有利的解释;从罪刑法定原则看,犯罪构成要件明确性要求刑法适用禁止"向一般条款逃避",亦是明确性原则的题中应有之意;可见,禁止"向一般条款逃避"亦是刑法的适用铁则。为此,刑法立法上,普通法条应配置较轻的法定刑;司法上,应杜绝随意将普通法条扩大解释,严格普通法条的适用条件,即便例外适用"重法优于轻法",也应当以刑法的注意规定为限。

In overlap of criminal law articles, the adopted law should be heavy rather than light like the ＂escape to general articles＂ in civil law. In comparison of the criminal law and civil law, the ration of criminal law in form is higher, interpre- tation of criminal law is ＂forbidden to escape to the general articles＂. In the legal interpretation, the form contract even made an unfavorable explanation to a party who supplys a text, the criminal law as a form contract between state and civilian ought to give a favorable interpretation to the people. In the principle of criminal law, the law is forbidden to escape to the general articles that the definition of the criminal elements of construction required, which is included in the principle of definition. It is thus clear that the forbidden to escape to the general articles is an iron rule. For this reason, the common articles ought to be a lighter legal punishment in criminal legislation; the common articles ought to forbid expanding explanation at will in administration of law, and to be strict in application, that is to say, the exception even suits ＂heavy pun- ishment better than light＂ must be defined in the limit of the notices of the criminal law.