中国近代法制变革视野中的罪刑法定原则

The Principle of Legally Prescribed Punishment for a Specified Crime in the Perspective of Modern Legal System Reform in China

罪刑法定原则的基本含义是"法无明文规定不为罪,法无明文规定不处罚",其核心思想是通过保障国民的预测可能性保障行为自由。罪刑法定原则是迈向法治的第一步,也是最为重要、最为关键的一步。近代中国法制变革中,罪刑法定原则逐步确立,相关配套制度也得以建立健全。然而,"徒法不足以自行",罪刑法定原则的贯彻需要足够的条件积累,否则只能流于形式,对罪刑规范的解释及创制也不可能违背"法之理在法外"的原理,"取乎其中,得乎其下"的规则在罪刑法定原则的变迁史中并非处处妥当,近代中国法制变革中的罪刑法定主义受到了"世异则事异,事异则备变"思想的干扰。

The basic meaning of the principle of a legally prescribed punishment for a specified crime is that ＂no crime without a law, no penalty without law making it＂, in which the core idea is to protect the freedom of behavior by ensuring the possibility of prediction. The principle of a legally prescribed punishment for a specified crime is the first step towards the rule of law, and it is the most important step. In modem China’s legal system reform, the legal principle has been gradually established, and also the related supporting sys-tem has been established and completed. However, ＂law itself is not enough＂ so the legal principle needs e- nough conditions, otherwise it can only become a mere formality. The interpretation and creation of the code of criminal punishment can not be contrary to the principle of ＂the principle of law is out of law＂; In the his-tory of the reform of the principle of a legally prescribed punishment for a specified crime, it is not always appropriate to adopt the rules of ＂see average, gain low＂; The legal principle under China＇s legal reform is influenced by the rule that ＂things are prepared to change when condition is different＂.