立法事实论:为刑事立法科学化探索未来

On Legislative Fact: Exploring the Future of the Scientization of Criminal Legislation

刑事立法中的假想式立法以激情立法与案例立法为典型,其与刑事立法科学化的要求背道而驰。为保持基本的刑法理性,避免假想式立法,实现刑事立法的科学化,刑事立法应植入立法事实的基因,提倡并发展立法事实论。立法事实是通过实证分析、价值判断、政策选择等过程而得以确认的,具有法益保护的真实性、必要性与价值性的规范性事实,有别于纯社会生活意义上的客观性事实。立法事实论有助于克服法益论的局限,立法事实可以为法益的确定提供客观的判断根据。刑事立法应重视立法中的实证分析;坚持只创设调整性规则,拒斥构成性规则;凡不具有法益保护的真实性、必要性、价值性的情况,都不具有立法事实根据,刑法不应将相关行为犯罪化。

The hypothetical legislation in the criminal legislation is typical of legislation in passion and legislation by case, which runs counter to the requirements of the Scientization of Criminal Legislation. In order to keep the basic rationality of criminal law, avoid hypothetical legislation and achieve scientific criminal legislation, criminal legislation should include the legislative fact, and ad- vocate and develop the theory of legislative fact at the same time. Legislative fact is confirmed through empirical analysis, value judgement and policy selection. It is the normative fact with the au- thenticity, necessity and valueof legal interest protection, which is different from the objective fact of pure social life. The legislative fact theory helps to overcome the limitation of the legal interest theo- ry, and provide an objective basis for the determination of the legal interest. In criminal legislation, we should attach importance to the empirical analysis in legislation, persist in creating adjustive rules and rejecting constitutive rules. All cases that do not have the authenticity, necessity and value of the protection of legal interests do not have the basis of legislative facts, and the criminal law should not criminalize the related behaviors.