中国刑法现代化的未来图景

Future Prospect of Modernization of China’s Criminal Law

从刑法进化论视角,政治刑法、市民刑法和社会刑法既是刑法的具体类型,又是刑法与政治秩序、法律秩序和社会秩序互动进化的产物。政治刑法以身份为依据对权贵与平民进行区分,并重点保护权贵的权益,因而在罪刑规范上实行区别对待。市民刑法力图打破刑法对身份的依赖,并以社会契约为理论基础建构一种立足于罪刑法定主义的平等刑法,其虽然有助于限制国家权力的不当扩张,但却存在着明显的正义困境:无法满足不同主体对社会正义的要求。社会刑法主张刑法建构的立足点是社会正义而不是社会契约,其在承认强者与弱者之基本社会分层的基础上,主张给于社会弱者以更多的人道关怀并给强者的自由以更为严格的法律限制,从而在有效矫正市民刑法之正义困境的同时,又可能带来刑法干预的不当扩张。这也决定了社会刑法只能以例外存在,并需要与市民刑法之间形成共生秩序,从而呈现出市民刑法"兼容"社会刑法的发展路线。此亦构成了中国刑法现代化的未来图景。

From the perspective of the evolution theory of criminal law, political criminal law, civil criminal law and social criminal law are not only specific types of criminal law, but also the products of interaction and evolution between criminal law and political order, legal order and social order. Political criminal law distinguishes between bigwigs and civilians based on their identities, and focuses on protection of rights and interests of bigwigs, therefore, civilians were suffered from unequal treatment on norms of crime and punishment. Civil criminal law seeks to break the criminal law＇ s reliance on identity, and builds a kind of equal criminal law based on the principle of legality according to the theory of social contract,while helping to limit the undue expansion of State power, but there is an obvious justice dilemma it can＇ t meet the requirements of different social justice subjects. The foothold that social criminal law advocates the construction of criminal law is based on social justice rather than social contract, in view of recognition of social stratification on the basis of the strong and the weak, consequently, its proposals on establishing more humanitarian to the weak and more stringent legal restrictions on the strong＇ s freedom may give rise to undue expansion of criminal law intervention and in parallel with overcoming justice adversities of social criminal law. As a result, social criminal law can only exist as an exception, and be required to meet symbiotic order with civil criminal law, thus showing an evolutionary route -civil criminal law ＂is compatible with＂ social criminal law,which constitutes the future images of criminal law modernization in China.