“刑法的刑事政策化”的理论解读

Theoretical Analysis on “the Criminal Law of Criminal Policy-oriented”

刑法的刑事政策化思想肇始于刑事古典学派与刑事近代学派的学术论争,以安塞尔为代表的新社会防卫运动使这种思想成为一种系统的理论体系,并发展成一股席卷世界的刑法改革浪潮。对于刑法的刑事政策化的涵义,可以从观念和实践两个层面去理解。观念层面上的刑法的刑事政策化是一种理念或者思想,从合目的性的角度出发,将刑法视为实现刑事政策目的手段之一,将特别预防和防卫社会作为刑法的主要任务和首要价值,在法治的框架内灵活地对待犯罪和罪犯。实践层面上的刑法的刑事政策化是一种趋势或者动向,指的是刑法的制定和适用要受到刑事政策的影响和制约,反映刑事政策的动态变化,从防卫社会的目的出发,合理地组织对犯罪的反应。刑法的刑事政策化的现代理论基础有三:即机能主义的刑法观、相对主义的犯罪观和非刑事化的刑事责任观。

The thought of criminal law of criminal policy-oriented stem from the academic controversy between the classical criminal school and the modem criminal school. This thought has become an systematic theory system with the Ansel, as a representative of the new socialdefence movement, and has developed into a stream of wave that swept the criminal reform all over the world. For the connotation of the criminal law of criminal policy-oriented, we could realize it from the two levels which are the concept and practice. The criminal law of criminal hof many means to achieve the purpose of criminal policy and thinks of the special prevention and socialdefence as the main task and the first value from the point of according with the purpose, then deals with the crime and offenders flexiblely within the framework of leagal system. The criminal law of criminal policy-oriented is a tendency or trend at the level of the practice. It means that the legislation and application of the criminal law should be influenced and restricted by the criminal policy and reflect the dynamic change of the criminal policy and make the response reasonably to the crime from the point of socialdefence. The modem theory foundation of the criminal law of the criminal policy-oriented has three points which are the criminal concept of the functionalism, the crime concept of relativism and the criminal re- sponsibility concept of decriminalization.