依法治国视野下“以刑制罪”的评价与反思

Speculation on Inversion of “Crime and Punishment Relation” and Its Evaluation

传统的罪刑关系认为"刑从罪生",然而针对近期司法实践中频出的罪刑失衡案件,有学者主张通过倒置罪刑关系来弥补裁判的偏颇。这种逆向关系涵盖的范围从解释论层面直至立法层面,有着"以刑制罪""以量刑反制定罪""以刑定罪"等不同表述。这种观点确实有助于实现部分个案的实质正义。然而,罪刑关系倒置在我国这样一个具有成文法传统的国度其存在空间值得怀疑,且我国以罪刑法定原则为根基所构建的刑法典天然地排斥这种倒置关系。"以刑制罪"为代表的罪刑关系倒置,并不是一种刑法理论发明,而是一种司法实务发现,甚至是一种司法无奈之举而非另一套新型理论。部分观点既误解了其生成路径,亦无法理正当性,在我国司法实践中亦没有足够的存在必要性,贸然运用更是弊大于利。

The traditional relation of crime and punishment is＂punishment from crime＂.However,some scholars claim to make up for the bias of the judgment through the inversion of the relationship between crime and punishment in the recent judicial practice.This kind of reverse relationship covers the range from the level of interpretation to the legislative level,and it has different expressions in Chinese of the punishment which is based on the behavior of a criminal and determines a penalty according to the extent of its harm,and then finds the appropriate accusation in turn.This view does help to achieve substantive justice in some cases.However,it is doubtful whether there is space for the existence of the crime and punishment relationship inverted in our country with such a tradition of statute law,and China＇s criminal code based on the principle of legally prescribed punishment for a specified crime naturally excludes this kind of inverted relationship.＂Crime of criminal punishment＂,led by the inverted relationship between crime and punishment,is not a criminal law theory,but a judicial practical discovery,even a kind of judicial helplessness rather than a new theory.Some points of view not only misunderstand the path of its generation,but also have no legal justifiable nature.There is not enough necessity in China＇s judicial practice,and rashly use does more harm than good.