“量刑反制定罪论”不违反罪刑法定

The Theory of Sentencing Impacting Criminal Norm Identification not Violating the Principle of Legality

量刑反制定罪论高举实质正义的大旗,强调量刑对定罪的反作用。然而认为该理论违反罪刑法定原则的批评比比皆是,目前学界主要存在滥用司法权、突破构成要件限制以及违反传统的罪刑关系这三个批评意见。抽象意义上的滥用司法权以及违反传统以罪定刑的观念无法形成有力的批评,但量刑反制定罪不能突破构成要件的限制,在此前提下的量刑对于定罪的反作用正是该理论的合理性所在,这种解释论意义上的量刑反制定罪并不违反罪刑法定原则。

The theory of sentencing impacting criminal norm identification, characterized by advocating substantive justice, emphasizes the counteraction of sentencing on the definition of a specific criminal norm. However, there are many criticisms of its violating the principle of legality in academia. Among others, the dangers the theory is thought to cause mainly include ： abusing judicial power, violating the restrictions of Tatbestand, and breaking the traditional relationship between crime and punishment. However, the criticisms of abusing judicial power and breaking the established relationship between crime and punishment are actually only based on abstract notions and thus rather weak. But it is definitely true that the theory at issue cannot violate the constraints of Tatbestand. Only on this condition can we argue that there is something reasonable in the theory of sentencing impacting criminal norm identification. And only from this perspective can we say that the theory at issue is not in conflict with the principle of legality.