英美法系罪刑法定原则的维度和启示——兼与大陆法系罪刑法定原则比较

Principle of Legality in Common Law System and Its Implication for China——In Comparison with That in Civil Law System

在美国等英美法系国家,罪刑法定原则是刑法的第一原则,其始于程序法上的明文规定,并逐渐延展至刑法实体上的严格遵守和践行。从抽象的法治层面看,英美法系的罪刑法定原则以自由法治为基础,重视罪刑法定原则的实质和消极功能。从更具象的微观层面分析,英美国家基于判例法制度,以具体的判例辅以不断增加的成文法规范,限制刑事司法权和立法权,保障刑法本身的合法性和保障人权。实践中通过当事人主义诉讼模式和严格正当程序实现罪刑法定原则的自由法治维度。与之相较,大陆法系的罪刑法定原则是以实体法,即以刑法典为核心和统帅对具体罪和罚进行法定,重视形式之维而赋予规范绝对命令性,约束的仅仅是刑事司法。实践中通过职权主义诉讼模式和罪刑法定原则的积极功能维护绝对规范隐含的秩序。但跨法系沙文主义和跨时间沙文主义的言说,常以大陆法系罪刑法定原则的面相为准据,导致对英美法系罪刑法定原则的忽略。比较英美法系和大陆法系的罪刑法定原则,英美法系罪刑法定原则既约束司法亦约束立法,且通过严格程序使刑法本身置于合法性审查之下,这更符合法治国思想。英美法系罪刑法定原则的法治国思想、人权保障和宪政思维,是纠正缺乏宪政思维和法治精神的我国罪刑法定原则在实践中的不良实像的重要参照。

The principle of legality, which has many a facet, is the fundamental principle of criminal law in modern countries. Countries in different law systems endow it different values and pay attention to its different facets. The civil law system, from which the principle of legality in substantive law was born, focuses on criminal law codification, treating it as specification of offences and punishment, and emphasizing statutes as absolute and effective commands. In practice, statutes as absolute commands and social order potential from statutes are maintained by the authoritative lawsuit system and the positive function of principle of legality.Evaluating by what goes above, commentators of crossing law-system chauvinism and crossing time-chauvinism often negate or demote principle of legality in case law system. However, the reality is that principle of legality, in countries in case law system, is based on autonomy in law of rule, focusing on dimensions of essence and negative function of principle of legality. In practice, protection of human rights and legality of criminal law are maintained by adversary lawsuit model and strict due process. In comparison, principle of legality in civil law system emphasizes constraint of the judiciary, which isolates criminal states and codification from scrutiny of legality, but principle of legality in case law system constrains both the judiciary and the legislature, which integrates criminal law itself into scrutiny of legality. In ideal rule of law countries,protection of human rights and constitutionalism contained in common law system are references for correcting undesirable reality. But now we lack both spirit of rule of law and constitution thinking in practice of our principle of legality.