民营经济刑法平等保护的体系化思考

Systematic Thoughts on Equal Protection of Criminal Law for Private Economy

给予民营经济刑法平等保护既具有宪法基础也具有社会基础。对民营经济刑法保护的失衡在立法上具体体现在保护范围较小、保护力度不强等方面,在司法上则主要表现为口袋罪的威胁仍然存在以及违法判断相对形式化。为了给民营经济提供平等的刑法保护,应该在刑法中贯彻平等保护的理念,消除身份、财产属性造成的入罪等方面的差异,以行为为基础确定罪名与章节归属,以数额、身份等情节调节法定刑,限制兜底条款的适用,并通过司法解释,对相关罪名的构成要素进一步予以明确。

Private economy should be granted equal protection of criminal law either from perspective of law or from that of social development. Protection of criminal law for private economy and state-owned economy is considered unequal because both coverage and degree of protection for the former are limited and the former is confronted with threat of formal judgment of unlawfulness and vague interpretation of elements of certain crimes which results in conviction more than often in practice. In order to achieve equal protection for private economy, legislature shall establish a fundamental principle of equal protection in criminal law, eliminate differences caused by identities and ownerships of property, set down conviction threshold on the basis of conduct, list identity, amounts of loss, criminal proceeds, etc. as sentencing circumstances, restrict use of save clause, and clarify vague interpretation of elements of certain crimes by issuing interpretation documents and guiding cases.