口袋罪何以正确适用

On Pocket Crime

口袋罪客观上存有扩大刑法打击面和侵犯公民基本人权的弊端,但其亦迎合了当下中国社会治理的需要,契合刑法积极预防的价值目标,在一定程度上还彰显了较为成熟的立法技艺。废除口袋罪只能是情怀式的向往、不能替代规则治理的刑法实践。然而,通过方法论的改进以消减口袋罪的适用乱象却是必要的。以人本主义哲学立场为根基、结合犯罪的本质属性和规则的体系性理解,特别是同类解释原则的运用,辅以必要的司法指导,定能限缩口袋罪制度运行中的外部效应,推动刑法善治。

In reality, the existence of pocket crime has potential flaws of expanding the crimecombating in the criminal law and infringing on citizens＇ basic human rights. However, Pocket crime also meets currently the needs of criminal governance and the goal of active prevention of the criminal law. To a certain extent, it is a more mature legislative skill. To abolish it is unrealistic, and cannot effect the practice of criminal law rule. However, it is necessary reduce the abuse of the crime by methodological improvement - take the humanism philosophy position as the foundation, combine the nature of the crime with the rule understanding, especially the application of the principle of the similar interpretation supplemented by the necessary judicial guidance.