政治刑法、秩序刑法到法治刑法——中国刑法转型四十年

Criminal law: Politics, Order and Rule of Law

改革开放四十年历程,也是我国刑法从政治刑法向法治刑法转型演变的过程,其间经历了秩序刑法阶段。精神上,刑法日渐体现出法治的品格,罪刑法定、人权保障等现代理念日益彰显。功能上,刑法从突出政治功能走向突出社会防卫功能,最终向兼顾社会防卫功能和人权保障功能的转变。适用范围上,刑法进行了犯罪化、国际化的调整。在中国特色社会主义进入新时代,刑法应进一步突出人权保障理念和功能、完善现代性的刑罚体系和量刑制度、构筑多元化刑法体系等。

In the past 40 years, criminal law of China had experienced three phases, which could be characterized by‘politics’,‘ order ’ and ‘ rule of law'. First, it manifested its relative independence from politics and strengthened the value of rule of law and human right steadily. Accordingly, the entire criminal law system has been reconstructed and perfected. Second, its political function became weaker with the development of China's society, while its social security function and human right function have been strengthened constantly. Third, criminal law of China has increasingly internationalized. In the new era of socialism with Chinese characteristics, criminal law of China should focus on human right protection, modernization of penal system and developing a diverse criminal law system.