论刑法作为宪法的罚则及二者的关系模式

The Criminal Law as Penalty to the Constitutional Law and Its Relationship Model Between the Above Two

目前关于宪法和刑法关系的表述,是一种基于宪法文本的解读,没有论及当前的法律设计是否合理。宪法是法律世界的统领,为个人权利对抗刑罚权力提供平台,形成对刑法审视,并且贯穿定罪和量刑两大根本领域。具体而言,对宪法秩序的破坏是犯罪行为具有严重社会危害性的指针和标准;只有宪法才能说明刑罚的正当性来源于人民。因此,刑法是宪法的一种罚则,宪法在由精神、原则和规范所组成的框架内指引着刑法的创设和发展。

The current expression of the relationship pattern between the constitutional law and criminal law are based on the law articles without much rational consideration. The constitutional law is the guide of legal system, it provides protection for individual rights to against the power of penalty exercised by country, forming the review of criminal law and running through the two fundamental areas of conviction and sentence. Specifically, the destruction to the constitutional order is a basic standard of judging an act with serious social harm or not, and only the constitutional law can explain why the sources of legitimacy of punishment is from the people. We can treat the criminal law as penalty to the constitutional law and the criminal law develops in the frame consisted with spirit, principles and articles of the constitutional law.