刑法体系解释之“体系范围”的审视与厘定

Review and Correction: The System Scope of Systematic Interpretation of Criminal Law

刑法体系解释之体系范围是运用该方法阐释论证刑法文本时,基于相应案件事实,就所参照的刑法体系乃至整个法律体系所择取的范围。通过适用审视,体系范围厘定不当主要是指,过度注重外在体系易导致结论的机械僵硬;在实质解释趋势下易肆意厘定内在体系之范围继而侵蚀罪刑法定。就此,有必要辩证性解决。就过度注重外在体系的问题,通过内在到外在融贯两个维度的体系范围来纠偏。就内在体系范围易肆意厘定的问题,在所涉文本之概念或语义明晰确定时通过外在体系来限制,此外则对所涉文本之内在体系范围进行类型化塑造,通过后果考察的方式来限制。

The scope of the system is the scope chosen by the criminal law system and even the whole legal system when interpreting and demonstrating a criminal law text with the interpretation of the criminal law system, according to the relevant facts of the case. Through the application of the examination, the formal logic system of systematic interpretation is easy to leading the phenomenon of mechanical referee. Not only these, because of the theoretical character of the boundary opening, in the real interpretation trend, the system interpretation of the entity value system will easily erode the principle of legality. Therefore, it should be divided into two steps to determine the system scope of system interpretation. Firstly, the scope of logical system and entity value system should be interpreted from entity to form. Then, through a binary mechanism to limit the arbitrary expansion of the boundary of the entity value system. In detail, the arbitrary expansion of its boundary can be restricted by formal logic system when the concept of text is relatively fixed. In addition, it must be limited by the consequence investigation, namely, the establishment of specific measurement standards and the systematic interpretation of the measures to operate.