德国刑事政策与刑法关系的理论及其借鉴意义

Germany's Theory about the Relationship between Its Criminal Policy and Criminal Law and Its Referential Value to China

在德国刑法理论上,刑事政策与刑法关系的理论主要经历了费尔巴哈、李斯特和罗克辛三个发展时期,但始终未能突破李斯特所设定的"刑法是刑事政策不可逾越的屏障"的著名论断。在处理刑事政策与刑法的关系时,德国刑法理论坚持的一个基本原则是刑事政策必须在罪刑法定原则的框架下运行,相应地,严格区分了刑法与刑事政策的功能及思考方式,且前者优先于后者。德国理论对我国具有重要的借鉴意义,但德国理论建立在作为法治原则或宪法原则的罪刑法定原则基础之上,同时以阶层式犯罪成立体系为生态环境,具有地域性。因而,在我国刑法理论上只能通过塑造文义解释的权威地位和否定酌定从重处罚情节来建立刑事政策与刑法的关系。

In Germany, the theory about the relationship between its criminal policy and criminal law has experienced three stages ： Feuerbach, Liszt and Roxin, but it doesn＇ t break the well -known thesis ＂criminal law is the insurmountable barrier to criminal policy＂ set by Liszt. In Germany＇ s criminal theory, the following basic principle is insisted in dealing with the relation between criminal policy and criminal law： Criminal policy must run in the framework of the prin- ciple of legality, accordingly, the function and thinking mode of criminal law is distinguished strictly from the function and thinking mode of criminal policy, and the former is superior to the latter. Germany＇ s theory is of great referential significance to China, but Germany＇ s theory is based on the principle of legality as the principle of rule of law and constitutional principle and lives in the ecological environment of hierarchical crime establishment system, so it is local. Therefore, we should establish the relation between criminal policy and criminal law in theory by modeling the authority of literal interpretation method and denying the discretionary heavier punishment.