自然法视阙下罪刑法定原则的诠解与重申——兼及现实中的“用刑机械化”

Interpretation and Reaffirmation of the Principle of Legality on the Ground of Natural Law——As well as the "Criminal Mechanization" in Reality

对罪刑法定原则的作用场域由单向推及双向易导致用刑的机械化,进而引发个案中处罚不当罚的行为。古典自然法与罪刑法定的思想基础同出一脉,都是坚守个人本位、保障人权,自然法孕育了罪刑法定。但早期的罪刑法定仅关注实然的法律,而忽视对法律内在价值的寻求,以至于走到自然法的反面。事实证明,罪刑法定原则若仅限于形式侧面便不能自足,尚需回诸自然法以弥补某种实质合理性诉求。新自然法应当成为现代意义上罪刑法定的法理支撑。在刑法教义学背景下,自然法思想更应在司法中发挥效用,在入罪上严格尊奉实在法的形式逻辑与基本语义;在出罪方面,当依照形式逻辑推导出的结果与情理或实质理性明显相悖时,就应诉诸特定罪名的保护目的,从而结合对构成要件的实质解释对虽然符合形式上罪状描述的行为做出罪处理。

The action field of the principle of legality from one-way to two-way can easily lead to the mechanization of punishment, and thus improper punishment in individual case. Both the ideological basis of classical natural law and the principle of legality are in the same vein, all of them sticking to the individual standard and guaranteeing human rights, the natural law has given birth to the principle of legality.However, the early principle of legality only concerned with the actual law, while neglecting the search for the intrinsic value of law, so that it went to the opposite of natural law. Facts have proved that if the principle of legality is limited to the side of form, it can't be self-sufficient, it still needs to go back to natural law to make up some kind of substantive and reasonable demands. The new natural law should be the legal support of the principle of legality in the modern sense. Under the criminal law dogmatics, the thought of natural law should play its role in judicature, in incrimination strictly adhere to the formal logic and basic semantics of the law; in the case of decriminalization, when the results derived from the formal logic are obviously contradictory to the reason or the substantive rationality, should resort to the protection purpose of specific charge, combine the substantive interpretations of the constituent elements, decriminalize the behavior, which although meets the formal description of the guilt.