象征性刑法概念辨析

Debate on the Concept of Symbolic Criminal Law

我国目前正处于刑事立法的活跃期,刑法学界对象征性刑法多保持批判的态度,认为诸多罪名的设立属于象征性刑法。虽然涉及此概念的论著已经很多,但对于究竟何为象征性刑法的深入研究尚不多见,并且,在我国出现混用象征性立法、积极的刑事立法和情绪化刑事立法等概念的现象。象征性刑事立法不同于情绪性刑事立法和积极刑事立法。象征性刑法系立法者出于政治目的,为表示某种姿态、情绪、态度与立场而设,不追求刑法规范的实际效果。我国目前虽然存在一定的情绪立法,但尚不存在象征性刑事立法。现阶段,我国应在尽量避免象征性刑事立法的基础上,合理引导和吸纳民意,保持法律与政治的合理边界。

At present,China is in the active period of criminal legislation and most criminal scholars take critical attitude towards the symbolic criminal law,considering that many crimes are the result of the symbolic criminal legislation.Although there are many books involving this concept,there lacks deep research into the issue of what the symbolic criminal law is.There is also a phenomenon that some concepts such as symbolic legislation,active criminal legislation and emotional criminal legislation are used to replace one another.The symbolic criminal law is different from the emotional criminal legislation and active criminal legislation.The symbolic criminal law is enacted by the legislator for political purposes to express a certain gesture,emotion,attitude and position,without pursuit of the real effect of rules of the criminal law.At present,there is some emotional criminal legislation but no symbolic criminal law in China.In this stage,China shall reasonably guide and absorb public opinions and keep a reasonable boundary between the law and the politics on basis of trying to avoid symbolic criminal legislation.