刑事立法政策与公众认同论纲

An Outline of Criminal Legislation Policy and Public Identity

刑法的公众认同属于观念刑法中的一环,是基于某种文化立场对刑事立法和司法活动产生的情感碰撞。公众认同对刑事立法政策中犯罪的性质和范围、刑罚的幅度等的确定具有不可或缺的作用。但公众意见亦有一些先天不足,如非理性、滞后性与不稳定性等。为了弥补这些不足,应在坚持罪刑法定原则的前提下,实现公众对刑法更高的认同感,需要从提高公众的法规范意识、立法吸纳民意程序化、刑法解释常识化等方面着手予以实现。

Public identity in criminal law should be one part of the concept of criminal law, which is an emotional impact on criminal legislation and judiciary activities based on some cultural standpoints. Public identity plays an indispensable role in determining the nature, scope of crime and the extent of criminal punishment in criminal legislation policy. But there still exist some inherent problems in public opinion, such as irrationality, hysteresis, instability and so on. In order to resolve these problems, we should adhere to the principle of legally prescribed punishment as a premise to achieve the public＇ s higher identity in criminal law, which needs to raise the public＇ s awareness on laws and regulations, ensure absorption of public opinion procedure - based in the process of legislation, make criminal law interpretation become common sense