形式解释论与实质解释论之争的出路

A Debate Between the Theory of Formal Interpretation and the Theory of Substantial Interpretation:Where to Go

我国刑法学中的形式解释论与实质解释论之争存在诸多问题。两种解释论不仅缺乏明确、客观的区分标准,而且未能为问题的解决提供可被接受的方案。同时,两种解释论的争论似乎已经偏离形式与实质的基本语义范畴。其实,两种解释论涉及的本质论题是构成要件的解释与罪刑法定原则的符合性问题。要解决这一问题,必须及时走出形式解释论与实质解释论之争的"沼泽",转而寻求刑法解释与刑法论证的结合。这不仅是法哲学和哲学范式转变的必然要求,也是现代化背景下刑事法治建设的现实需要。破除对解释者个人权威的迷信,倡导在开放性结构中寻求可接受性的解释结论,才是解释者喧嚣过后应该追寻的足迹。

There are many problems in the debate between the theory of formal interpretation and the theory of substantial interpretation in Chinese criminal jurisprudence. First of all, there is not an explicit and objective criterion to distinct these two theories. Furthermore, the debate fails to provide an acceptable solution to solve the problem. Finally, the debate is severely deviated from the basic connotation of form and substance. In fact, the essential topic of the debate is about whether the interpretation of constituent ele- ments is consistent with the principle of legality. In order to solve the problem, we should go out of the marsh of the debate between the theory of formal interpretation and the theory of substantial interpretation and turn to the combination of criminal law interpretation and argumentation, which caters not only to con- version of legal philosophy and philosophic paradigms but also to the rule of criminal law in modern society. Obliterating the myth of interpreters＇ personal authority and advocating search for an acceptable conclusion in an open structure are the path interpreters should follow after noisy debate.