中国经济刑法的立法政策检视

Review on the Legislative Policies of China's Economic Criminal Law

中国经济刑法的立法政策自改革开放以来一直侧重经济秩序和交易安全的保护。这一政策体现在经济刑法的范围界定上,即以交易过程而非所有权为保障对象。然而在界定交易过程时,其将具体危险犯和抽象危险犯均囊括在要件之中,这与罪刑法定主义逐渐发生背离。这种背离导致了经济犯罪的不确定性,也违反了刑法谦抑原则。需要注意的是,在改革开放的大潮中,这种背离有现实合理性。当前改革开放仍在继续,中国经济刑法的立法政策还应当一以贯之。

Since the reform and opening up, the legislative policies of China’s economic criminal law have focused on the protection of economic order and transaction security. This policy is reflected in the scope of economic criminal law, that is, the transaction process rather than ownership is the object of protection. However, when defining the transaction process, it included both specific dangerous criminals and abstract dangerous criminals in the essentials, which gradually deviated from the statutory crime theory. This deviation has caused uncertainty in economic crimes and violated the principle of restraint in criminal law. It should be noted that, in the tide of reform and opening up, this deviation has its own rationality. The current reform and opening up are still continuing, and the legislative policies of China’s economic criminal law should still be consistent.