谦抑维度下“作弊入刑”的厘清与扬弃

Clarify and Sublation of Modesty under the Dimension of “Cheating Penalty”

近年来,考研、高考等全国统一性考试中屡屡曝出"舞弊门"的丑闻,其社会危害性愈演愈烈。正因如此,"作弊入刑"的舆论呼声不断高涨。但不少学者也抨击了罪名设立的现象化,并对其违背谦抑主义精神抱有怀疑态度。在某种程度上,谦抑性是防止刑法滥觞的价值底线,而"作弊入刑"恰好地契合了谦抑主义精神的内在要求。与此同时,我们也应看到"作弊入刑"在初步实践化的过程中暴露出许多弊端。因此,探究"作弊入刑"与"谦抑主义"的价值平衡点再次成为风险刑法下的司法趋向。

In recent years, the unified national college entrance examination has repeatedly exposed the ＂fraud door＂scandals, leading to the social harm is worse and worse. Because of it, ＂cheating punishment＂ of public opinion has been rising. However, many scholars have criticized the phenomenon of crime establishment, and oppugned the spirit of modesty. To some extent, modesty is to protect the value of criminal law, and ＂cheating penalty＂is just to meet the requirement of modesty. At the same time, we should realize that the ＂cheating penahy＂has exposed many drawbacks in the preliminary practice. Therefore, exploring the ＂balance of value on the penalty＂and＂modesty＂ becomes the trend of the risk of criminal law.