法定刑调整后的追诉时效问题及其澄清——以最高人民法院“答复”为中心的考察

The Problem of Limitation of Prosecution Resulting from the Change of Statutory Sentence in Criminal Law and Its Solution: an Investigation Centered on the “Reply”Issued by the Supreme People's Court

由于刑法修正案在刑事立法层面的不断调整,致使新旧立法因法定刑变化而带来追诉时效的现实问题。最高人民法院通过对具体个案的答复对此问题予以针对性回应,但无论是采用的形式种类还是背后的逻辑推理,都偏离了刑事法治时效制度的要义与精神内核。法定刑变化引发的追诉时效问题必须坚守法治原则与体系化思维予以纾解,依照刑法适应性背后的权利保障精神,在侦查之后的诉讼阶段仍应遵守从旧兼从轻的溯及力原则,实现总分则规定的体系兼顾并对追诉时效问题予以重新审查,从而保障追诉时效的制度价值能够真正映射到具体个案之中。

With the continuous adjustment of criminal legislation through the amendment to the Criminal Law,China is faced with the realistic problem of limitation of prosecution resulting from the change of statutory sentence.The Supreme People’s Court provides a targeted response to this problem by giving reply to specific questions in individual cases.However,both the form of and the logical reasoning behind this response deviate from the essence and spirit of the limitation system of criminal law.In dealing with the problem of limitation of prosecution caused by the change of statutory sentence,China must adhere to the principle of the rule of law and systematized thinking,comply with the principle of“following the former provisions and imposing lighter punishment”at the stage of prosecution after investigation,give full consideration to the stipulations of both general and special provisions of the Criminal Law,and re-examine the problem of prescription,so as to ensure that the value of the system of limitation of prosecution is embodies in each specific case.