略论刑法的正当性观念

On the Justification of Criminal Law

正当性是刑法存在之本,对刑法正当性的探寻是刑法及刑法理论自觉、自立及自足的彰显。刑事旧派与新派关于刑法的正当性观念伯仲自见,但均囿于特定境域,其面向开放的历史难免捉襟见肘。刑法的正当性须考量刑法应有属性方能获得合理诠释。刑法应有属性之国家性、市民性及社会性分别演绎出国家、市民及社会层面的刑法正当性观念。国家层面与市民层面的刑法正当性系矛盾关系,立于权力——权利之端,分别旨向秩序——自由,刑法正当性须在两端之间寻得平衡,而旨向发展的社会层面的正当性使之成为可能。在社会层面的刑法正当性观念导向之下,正当的刑法是"符合社会发展规律"的"必要"的刑法。

Justification is the fundamental of criminal law, researching of it are highlight of theory conscious, self- reliance and self-sufficiency of criminal law. Old School and New School of Criminal law divided into justification of criminal law,which both were confined to a specific realm, and fell into dilemma when facing opening history. Justification of criminal law should consider the properties of criminal law to obtain a reasonable interpretation. Criminal＇s attributes of polity,society and citizen deduced relational concept of justification of criminal law. Political justification of criminal law and civil justification of criminal law are contradictory, which standing the side of power-right, respectively seek to maximize the order-freedom, and justification of criminal law must keep balance between the two ends, while social justification of criminal law make it possible. With the concept-oriented of social justification of criminal law,＂ according with social development＂ and ＂necessary＂ is the criterion justified criminal law.