反思刑法谦抑主义

Rethinking the Modesty and Restraint of Criminal Law

谦抑性考察已成为当下评判刑事立法和刑事司法的基础性分析工具。与此相应,我国晚近以来的历次刑法修正案所反映的犯罪化进程被不少学者反复诟病为"不谦抑"。刑法谦抑主义虽然彰显了古典刑法保障个人权利的理念,但是谦抑性并非一个价值中立、超越时空、至高无上的刑法原则。直面现代社会刑法法益保护与人权保障的内在紧张关系,仅从单一化的谦抑主义维度去评判刑法发展的得失是偏颇的。谦抑性应该还原为罪刑法定原则之下用来说明和贯彻罪刑法定原则的子原则。反思刑法谦抑主义,并非要放弃或终结对刑法谦抑性的追求,而是主张在肯定谦抑理念的同时对谦抑性在立法和司法、设罪和配刑等不同场域作不同的把握。刑法的发展需要在法益保护与人权保障中寻求一种张弛有度的动态平衡,而绝非单向度的谦抑主义。

The modesty and restraint principle has recently become a fundamental analytical tool for judging criminal legislation and criminal justice. Correspondingly, the criminalization reflected in the successive amendments to the criminal law in recent years has been repeatedly criticized by many scholars as "not consistent with the modesty and restraint of criminal law".The modesty and restraint principle highlights the classical notion of protecting individual rights in criminal law, but it is not a value-neutral, time-transcending, supreme principle of criminal law. Confronting the inherent tension between the protection of legal interests and human rights in modern society, it is biased to judge the development of criminal law only from the simple standard of modesty and restraint. The modesty and restraint of criminal law should be reduced to a sub-principle used to illustrate and implement the principle of Nulla Poena Sine Lege. Rethinking the modesty and restraint of criminal law is not to abandon or end the pursuit of this principle but to acknowledge it and, at the same time, to grasp it differently in legislation and justice, criminalization and sentencing. The development of criminal law requires a dynamic balance between protecting legal interests and safeguarding human rights rather than a unidirectional modesty and restraint.