系统论视域下刑事立法的失调及其修正

Imbalance and Amendment to the Criminal Legislation from the Perspective of System Theory

中国刑法的修正在科学性、时代性、严密性等方面得到了改进和突破,但是也存在立法失调现象,具体表现为前置性法律规范缺失、刑事处罚不平衡、刑法内部规定之间不协调、刑法与非刑法之间不协调。刑事立法之所以失调,客观原因是不可避免的,也即社会生活的纷繁复杂和丰富多变必将引起刑法的相应修改,但主观原因则有系统性理念贯彻不力、立法技术相对有限、学界主观认识不足等。为此,有必要从系统论视域来强调刑事立法的协调性,提高刑法修正水平、加强立法评估和强化刑事立法的梳理,从而呼应民法典编撰所体现的法典化、体系化趋势。

The amendment of our country's criminal law has seen improved breakthroughs in terms of scientificity, timely needs and tightness, but there have also been a lot of legislative dissonance. The specific performance of the front lack legal norms, criminal punishment is imbalanced from time to time, internal rules of criminal law as well as criminal and non-criminal law do not coordinate between. There are objective and subjective reasons for the maladjustment of criminal legislation. Subjectively, it is due to the weak implementation of the systematic concept of legislation, the relative limitation of legislative technology and subjective knowledge of theory is insufficient. To enhance the coordination of criminal law legislation, we need to improve the level of criminal law amendment, strengthen legislative evaluation and strengthen the combing of criminal legislation.