对刑法中法律拟制正当性质疑之辨析

Clarifying Doubt about Legitimacy of Legal Fiction in Criminal Law

学者对刑法中法律拟制的"正当性"提出了各种质疑,但法律拟制绝非学界所批判的那般一无是处或不可容忍。法律拟制虽然重视刑法的社会保护机能,但也绝不漠视刑法的人权保障机能。法律拟制既不违背罪刑法定形式侧面的要求,也不违背罪刑法定实质侧面的要求。法律拟制也并不因主观归罪或客观归罪而违反了主客观相统一原则。法律拟制条款具备独立的构成要件体系,其与基本规定的构成要件并行不悖。刑法中的法律拟制在具有法律经济性等优点的同时,也确实会产生违背刑法的机能、加剧重刑主义、侵蚀罪刑均衡之基本原则,以及导致司法实践的混乱等"威胁",但这些"威胁"实际上均是因不恰当地设置法律拟制所致。我们应当认识到,法律拟制是由于立法者有时没有严格遵循法律拟制应有的设置规则和要求,才导致某些法律拟制设置得不合理。

Legal fiction under criminal law indeed could have certain ＂threats＂ If legal fiction is made appropriately, its equivalence effect may expand out of people＇ s acceptable scope, as a result, the functions of criminal law may be violated, doctrine of severe punishment may be aggravated, Balance between Crime and Penalty may be eroded, more seriously, theories of criminal law may subject to chaos. Although inappropriate stipulation may cause the aforesaid threats, there is no ground for some scholars to criticize legal fiction as useless or intolerable. We cannot casually use regular criminal law theories to blame deficiencies of legal fiction, and doubt its legitimacy. Ahhough legal fiction focuses on social protection function of criminal law, however, it by no means would ignore human rights protection function of criminal law. Legal fiction neither violate formal nor essential requirement of the principle of legality. Legal fiction also does not violate the principle of the unification of the subjective elements and the objective elements because it neither falls into subjective culpability nor objective culpability. Legal fiction has unique system of constitutive requirement, which is not contradict with the constitutive requirement of basic rules, since the application of the constitutive requirement of special provisions does not mean the constitutive requirement of basic rules would become nominal. Therefore, in fact, legal fiction is not as threatening or contradictious as described by these eriticizers. Only when legislators did not formulate legal fiction in accordance with proper rules and requirements, could cause the unreasonable setting of certain legal fiction.