我国轻罪刑事立法现象及其实践路径探究——对刑法修正的批评所引发的思考

On the Legislative Phenomenon and Practical Path of Misdemeanor in China——Reflections on the Criticism of the Amendment to the Criminal Law

晚近刑法修正受到学界的很多批评,原因在于犯罪化的立法趋势似乎破坏了刑法的谦抑性原则。谦抑性原则并不与增设罪名存在必然冲突,值得警惕的是,刑事立法受社会舆论影响的无序变动对科学立法造成的冲击。从近年来刑法修正的内容来看,轻罪刑事立法现象已经萌芽,科学合理地建构我国的轻罪制度成为未来刑法发展的基本走向。这不仅是进一步完善我国刑事法律制度的必然要求,也是塑造公民规则意识、维系社会公平正义的有力举措。轻罪制度的构建应以重塑对犯罪本质的观念认识为基础,遵循“类罪名——个罪名”“普通罪名——特殊罪名”的立法进路,辅之以多元化的刑事制裁体系和高效的诉讼程序。

Recently, the amendment to the criminal law has been criticized by many people in the academic circles because the trend of criminalization seems to undermine the principle of modesty of criminal law. The principle of modesty does not necessarily conflict with the addition of charges. It is worth noting that the disorderly changes of criminal legislation affected by public opinion have an impact on scientific legislation. Judging from the content of criminal law amendment in recent years, the phenomenon of criminal legislation of misdemeanor has sprouted and the scientific and reasonable construction of our misdemeanor system will become the basic trend of future criminal law development. This is not only an inevitable requirement for further improving our criminal legal system, but also a powerful measure to shape citizens’ awareness of rules and maintain social fairness and justice. The construction of misdemeanor system should be based on remolding the concept of the essence of crime, follow the legislative approach of “similar offence-one offence” and “common offence-special offence”, supplemented by diversified criminal sanction system and efficient litigation procedure.