民法典时代背景下刑法惩罚违约行为之反思

Reflection on the Criminal Law’s Punishment of Breach of Contract under the Background of Civil Code Era

我国刑法介入违约行为的现象与现代自由主义法治观具有相抵牾之处,从刑法教义学的立场来看,其犯罪化的理论根基并不牢固、与法秩序统一思维相抵触、与我国刑罚现代化的目标相悖。为了避免违约行为的社会治理陷入过度刑法化的困境,应提供违约行为的司法非犯罪化,这样既有利于维护我国刑事立法权威性,也有利于构建多元的社会治理方式。

Under the background of the mutual amalgamation and penetration of public and private law,there exists the phenomenon of punishing the breach of contract in the criminal law of Our country.Breach of contract is a free act of contract,which should be regulated by civil law,administrative law and other pre-emptive norms.The phenomenon of criminal law’s intervention in breach of contract is in contradiction to the modern liberal view of law.From the standpoint of criminal law doctrine,its theoretical foundation of criminalization is not firm,it is contrary to the unity of thinking of law and order,and it is contrary to the goal of China’s criminal penalty modernization.In order to avoid the dilemma of excessive criminal law in the social governance of breach of contract,the judicial decriminalization of breach of contract should be advocated.This is not only conducive to maintaining the authority of China’s criminal legislation,but also conducive to the construction of a pluralistic way of social governance.