中国刑法教义学化过程中的五大误区

Five Major Mistakes in the Dogmatization of Chinese Criminal Law

晚近以来,中国刑法在去政治化之后一直在教义学化的道路上发展。然而,在我国刑法教义学化的过程中存在着五大误区。在未对"刑法教义学"达成共识的情况下,即已纷纷展开了具体的刑法教义学的研究,导致根源性问题先天不足;在未对刑法教义学与刑法解释学之间的关系彻底厘清时,等同使用这两个概念,造成了一定的理论混同,导致对刑法教义学的认识莫衷一是;缺乏对刑法教义学科学特质的探讨,进而缺乏对刑法教义"化成"过程的揭示,导致中国刑法实行教义学化的必要性未能充分揭示;将刑法教义学等同于法条主义/反实践主义,并因此误解而反对刑法教义学,导致刑法教义学招致了莫须有的不信任;将中国刑法的教义学化等同于研究中的概念转换,庸俗了刑法教义学化的志业,导致中国刑法教义学化进程受到影响。在刑法教义学化过程中,随时反省各种可能存在的偏差或问题,有助于我国刑法教义学化的深入进行。

Since its depoliticization in recent years,Chinese criminal law has been developing towards dogmatization.However,five kinds of mistakes have been made by Chinese scholars in the process of dogmatization of criminal law in China.Firstly,specific studies of the dogmatics of criminal law have been carried out one after another before a consensus on this concept has been reached,resulting in inherent deficiency in these studies.Secondly,“the dogmatics of criminal law”and“the hermeneutics of criminal law”have been used as two equivalent concepts before a thorough clarification of the relationship between them has been made,resulting in theoretical mixup and the controversy over the meaning of the dogmatics of criminal law.Thirdly,no discussion has been carried out on the scientific characteristics and the formation process of the dogmatics of criminal law,resulting in the failure to fully demonstrate the necessity of the dogmatization of Chinese criminal law.Fourthly,the dogmatics of criminal law has been equated with textualism and antipracticalism,resulting in the misunderstanding and unwarranted mistrust of and opposition to the dogmatics of criminal law.And fifthly,the dogmatization of Chinese criminal law has been equated with concept conversion in the study of criminal law,thus vulgarizing the dogmatization of criminal law,and impeding its development in China.In the process of dogmatization of criminal law,reflecting on various possible deviations and problems at any time is conducive to the deepening of the process.