公众认同视野下的刑法基本原则

The Basic Principles of Criminal Law under the Perspective of Pubic Recognition

刑法公众认同以刑法基本原则的公众认同为集中体现。罪刑法定原则的公众认同可运用法规范的预测可能性原理予以概括性说明,并通过明确性等原则得到具体展开,且可得到情理性补充说明。公众认同对罪刑法定原则提出了相对性要求。罪刑均衡原则的公众认同可得到与罪刑法定原则同样的说明。公众认同对罪刑均衡原则提出了实质性要求。刑法面前人人平等原则的公众认同依然可运用法规范的预测性原理予以说明,且其对刑法面前人人平等原则同样提出了实质性要求。在刑法公众认同之下,刑法立法面前人人平等是应该而且能够实现的"神话"。保障人权和维持秩序这两项刑法价值的实现,是刑法基本原则赢得公众认同的最终依凭和落脚。

The public recognition of the basic principles of criminal law epitomizes the public recognition of criminal law. The public recognition of principle of legality can be summarized with the forecasting principle of law, expanded through principle of clarity and supplemented with emotion reason. The public recognition of principle of balance between crime and punishment can also be explained as the principle of legality. The public recognition asserts a claim for substantiveness for the principle of balance between crime and punishment through the deservedness. The public recognition of principle of equality under criminal law can still be explained by the forecasting principle of law. According to the public recognition, the equality from legislation of criminal law should be a myth which can be realized. However, the two kinds of value of criminal law, protecting human rights and keeping social order, is the final goal for the public to accept the basic principles of criminal law.