刑法活性化对谦抑性原则之契合

The Conformity of the Activation of Criminal Law to the Principle of Modesty

《刑法修正案（九）》的生效实施,说明我国刑事立法已经出现活性化的现象,这将使刑法活性化与谦抑性原则的契合性问题成为刑法学研究的新课题。刑法活性化是顺应我国社会现实发展的应有之义,是风险社会下刑事立法的必然倾向。因此,必须通过刑法学自身的反思对谦抑性原则的内涵做出合理的解释,即承认谦抑性的核心是＂谦＂而不是＂抑＂,谦抑性对刑罚处罚的要求是＂合理＂而不是＂抑制＂。于此,犯罪化不否定刑法的补充性,处罚早期化不违反处罚范围的合理性,活性化的刑事立法是符合谦抑性之内涵的,二者并不存在实质上的冲突。

Since the 9th Amendment Criminal Law peared an active phenomenon ,which will lead to fitting came into effect, the criminal legislation of our countl7 has ap- problems of criminal activity and the principle of modesty be coming a new topic in research of the criminal law. The activity of criminal law is the proper meaning of the development of our society and the inevitable trend of criminal legislation in the risk society. Therefore, we must give a reasonable ex- planation of the connotation of the principle of modesty by reflecting the science of criminal law, that is to say, the core of the principle of modesty is ＂modest＂ rather than ＂suppression＂, the penalty requirements should be ＂reasonable＂ in- stead of ＂inhibition＂. In this case, the incrimination does not deny the complementarity of the criminal law, early pun- ishment is not in violation of the ration of the scope of punishment, active criminal legislation is in line with the connota tion of modesty,there is no substantive conflict between the two.