增设新罪的观念——对积极刑法观的支持

The Concept of Creating New Crimes:In Support of the View of Positive Criminal Law

我国刑法理论存在积极刑法观、消极刑法观与折衷刑法观的对立,但折衷刑法观的具体主张与消极刑法观并无区别。社会的发展变化,导致需要刑法保护的法益日益增加,也使得法益受侵害的程度日益严重,原本缺乏类型性的现行刑法,存在许多处罚漏洞。我国当下需要采取积极刑法观,通过增设新罪来满足保护法益的合理要求。积极刑法观不是所谓激进刑法观,并非主张随意增设新罪,而是主张按照谦抑的法益保护原则增设新罪。持消极刑法观的学者所提出的近年来增设新罪的立法仅具有象征性意义,增设新罪损坏刑法的稳定性与谦抑性,违反法益保护原则,不符合大国法治的要求等观点与理由,要么不符合客观事实,要么已经落后于时代,要么只是抽象的议论,因而缺乏现实意义。

There are controversies between the view of positive criminal law,the view of passive criminal law and the compromised view of criminal law in our criminal law theory;however,the concrete propositions of the compromised view of criminal law are usually not different from the view of passive criminal law.The development and change of the society leads to the increase of legal interests that need to be protected by the criminal law,making the infringement of legal interests become more and more serious and causing punishment loopholes in the current criminal law which lacks typical specifications in the first place.At present,our criminal law theory needs to adopt the view of positive criminal law,so as to meet the reasonable requirements of providing legal protection for the legal interests by creating new crimes.The view of positive criminal law is not equal to the so-called view of radical criminal law.Instead of proposing the creation of new crimes at will,the view of positive criminal law advocates that the creation of new crimes should be restrained by the modest principle of protecting legal interests.For views and reasons proposed by scholars who are in support of the view of passive criminal law,such as legislation of creating new crimes in recent years only have symbolic significance,damages the stability status and the modest principle of the criminal law,violates the principle of legally protected interests,or does not conform to the rule of law principle of our nation etc.,they are either not consistent with the objective facts,or have been falling behind the times,or they are just abstract arguments,therefore,they are all lack of practical significance.