论“以刑制罪”思维的教义反思与司法适用——以“温岭虐童案”的执法思路为切入点

传统的罪刑关系理论均强调"由罪而刑",然而由于法定刑本身固有的特点,这一思路在一些疑难案件中无法贯彻。为解决这一问题,司法实践中有人提出了"以刑制罪"的思路以弥补"由罪而刑"思路的不足,然而"以刑制罪"具有天然的缺陷和不足,因此在司法实践中要慎重使用,同时法官要对沿袭这一思路所选择的罪名的犯罪构成要件进行正确的刑法解释。

The traditional relations theory between Crime and Punishment emphasized on Gotten punishment for the criminal act ＂. However, due to inherent characteristics in Statutory Sentence, it failed to implement in some difficult cases. To solve this problem, someone suggested that taking the idea of＂ Giving sentences partially according to the punishment ＂ can make up the shortness of＂ Gotten punishment for the criminal act＂ in judicial practice, however, ＂ Giving sentences partially according to the punishment＂ has natural defects and deficiencies in judicial practice, which should be used with caution, meanwhile, the judge should explain the elements of the crime followed this line of thought.