论积极刑法立法观的坚持与完善

On Persistence and Perfection of Positive Criminal Law Legislation

积极刑法立法观与消极刑法立法观的争锋持续已久,在新时代的中国应当选择何种立法观是亟需解决的问题。如今消极刑法立法观的适用面临困境,积极刑法立法观优势凸显,是未来刑法发展的应有之道,但同时在积极刑法立法观的实操过程中出现条文设置模糊、立法情绪化、犯罪标签负面影响严重的问题,需要对积极刑法立法观进行科学协调,将犯罪化控制在合理限度内,并将刑罚设置趋向轻缓化。

The debate between positive and negative legislative views of criminal law has lasted for a long time. What kind of legislative view should China choose in the new era is an urgent problem to be solved. At present, the application of the negative legislative view of criminal law is facing difficulties. The prominence of the advantages of the positive legislative view of criminal law is the proper way for the development of criminal law in the future. However, in the practical process of the positive legislative view of criminal law, there are problems such as vague provisions, emotional legislation, and serious negative impact of crime labels. It is necessary to scientifically coordinate the positive legislative view of criminal law, control crime within a reasonable limit, and ease the penalty setting.