日本近现代刑法的制定、修改及其评价

The Legislation and Amendment of the Modern Japanese Criminal Law and Their Comments

随着明治维新所开启的近代化进程，日本逐渐从中华法系的荫庇中脱离，转而接受法国刑法的影响，并制定了具有折中主义色彩的1880年旧刑法。而后，日本又转向以德国刑法为模型，颁布了延续至今的1907年刑法。日本现行刑法制定后，虽在20世纪70年代曾有过全面修改的动向但却最终胎死腹中，其刑法典自身历经20余次部分修正．以适应社会需求。日本的现行刑法之所以能够跨越从旧宪法到现行宪法的变革而在制定后超过100年的时间中作为法律保持其同一性，有其背后的立法理念、立法技术和立法体制等诸多原因。同时，关于共谋罪的创设、性犯罪的严罚化等修改动向也值得关注。对日本刑法发展史百余年历程的描述和梳理，不但具有立法史上的价值，而且对于正处于转型期的中国刑法发展而言，亦可提供一种可供借鉴的素材。

Along with the modernization triggered by Meiji Restoration, the Japanese criminal law had gradually emerged from the shade of Chinese legal system. And then the 1880 Japanese criminal law ,reflecting eclecticism, came into being under the influence of the French criminal law. After that, Japan modeled the German criminal law and promulgated the 1907 Japanese criminal law that has been thriving to this day. Although the current criminal law failed to be amended thoroughly in 1970s, it went through more than 20 times partial modifications in order to meet the need of society. The reason why the modem Japanese criminal law can survive the transformation from the old constitution to the current one as well as has kept its identity in over 100 years after its enactment, lies in many aspects such as the legislative ideas, technique, and systems behind it. But meanwhile, the amendment tendency, such as the creation of the concept of conspiracy crime and increasingly severer punishment of sexual crime, is still worthy of attention. The description and systematization of the development history of the Japanese criminal law in over one hundred years, not only possess the value of legislative history, but also can provide a referential element for the development of China＇s criminal law, which is now in the transitional oeriod.