论刑法解释的价值取舍——从法治视角看人权保障与社会正义的冲突

On the Value Orientation of the Criminal Law Interpretation:Study of the Conflicts between Human Rights Guarantee and Social Justice from the Rule of Law Perspective

刑法实施的过程即刑法解释的过程。在动态的法治中,刑法解释的价值取舍反映了刑法的价值。刑法解释应当严格遵照刑法目的,揭示刑法条文的本来含义。人权保障和社会正义是刑法的两大基本价值,两者在根本上是有机统一的,但在个案当中也时有冲突。刑法是打击犯罪的法律,以维护社会正义为首要目的。面对冲突,刑法解释应该坚持社会正义优先。法治视角下,刑法和其他部门法有各自的立法目的和价值选择,各种法律各司其职才能避免法治出现偏差。理性的价值选择是法治的要求,是人们行为的正确指引。

The enforcement process of criminal law is the the exact process of its interpreta- tion. For the dynamic rule of law, the value orientation of the criminal law interpretation reflects the value of criminal law. The interpretation should strictly be in line with the aim of criminal law to reveal the original points of its articles. Human rights guarantee and social justice, two basic values of the criminal law, are an organic integration fundamentally ; however, in some cases, the two values may conflict one another at some time. As the law against crimes, criminal law consid- ers social justice guarantee as its primary goal. Therefore, in face of conflicts, criminal law inter- pretation should give priority to social justice guarantee. From the perspective of rule of law, criminal law and other departmental laws have their respective legislative intent and value orienta- tions. 0nly when those different laws perform their own functions can the rule of law avoid devia- tion. Reasonable value orientation is the requirement of rule of law as well as the correct guidance of people＇ s behavior.