溯及力与既判力的关系问题研究——区分式的溯及力优先模式之构建

The Research on the Relationship between Retroactive Effect and Adjudged Force——Constructing the Mode of the Differentiated Preferential Retroactive Effect

就溯及力和既判力的关系而言,我国刑法典站在维护司法权威的角度,采用了"既判力优先模式"。但是,晚近一些国家和地区都开始转而采用以保障人权为核心的"溯及力优先模式"。溯及力与既判力的关系问题是一种价值取向的衡量问题,在当今轻刑化、缓和化的时代背景之下,溯及力问题不仅应当注重维护司法权威,更加应当注重保障人权。因此,承认新刑法对已决案件具有溯及力,是时代发展的必然选择。

There are two legal concepts which are retroactive effect and criminal adjudged force. In order to safeguardjudicial authority, our country adopts“the mode of preferential thinking about adjudged force” . However, many countriesand regions have turn to think much of protecting of human rights and adopt “the mode of preferential thinking aboutretroactive effect”in recent years. The relation of two concepts is just a measurement of value orientation. Nowadays,with the light and mitigation punishment, the retroactive effect should not only emphasize on safeguarding judicial au-thority, but also emphasize on protecting of human rights. Therefore, it is an inevitable choice for the development of thetimes to recognize that the new criminal law hasa retrospective effect on the solved cases.