刑法修正中的规范衔接意愿与“机械对接”困局——“前附属刑法时代”协同立法方案之提倡

The Connectivity of Norms and the Predicament of "Mechanical Connection" in the Amendment to Criminal Law——On the Promotion of Collaborative Legislation Approach in "the Pre-Nebenstrafrecht Era"

在刑法立法大一统模式下,行政犯规定于刑法典之中,刑法修正中不免要寻求与其他部门法之间的规范衔接。但从"立法参与主体、立法时间顺序以及立法理由说明"等多个维度来看,刑法与其他部门立法相互脱节,呈现出"分割式"立法局面;规范衔接的良好愿景实际上表现为刑法一厢情愿地"机械对接",不仅未能在实质上产生"衔接"效果,反而引发规范用语表述不一致、立法事实不清晰及法益定位不明确等现实问题。直观来看,引入附属刑法可以有效解决上述问题,但因立法思维惯性与立法技术的制约,短期内难以付诸立法实践。目前,可通过协同立法模式克服"机械对接"困局、实现规范衔接效果,并将之作为"前附属刑法时代"的过渡性方案。具体来看,协同立法模式强调立法过程中刑法与非刑事部门法的多主体联合参与,对规范衔接所涉及的对象问题以及立法理由进行充分说明。与此同时,还应当改变"刑法不能频繁修改"的固有观念,将当前"积攒式"修法模式调整为"零散式"修法模式,伴随着相关非刑事部门法的制定或修改一并完成刑法修正中的规范衔接立法。

Under the legislative model of criminal norms incorporated into one law, the administrative offenses are stipulated in the criminal code, thus during the amendment to criminal law,it is inevitable to seek the connection of norms between criminal law and laws of other areas. However,from multiple perspectives of "legislative participants, legislative time sequence and legislative reasons",the criminal law and laws of other areas are disconnected, showing a "split" situation on legislation;The good vision of connectivity of norms actually turns into the wishful "mechanical connection" by the criminal law, which not only fails to produce the effect of "connectivity" in reality, but also leads to practical problems such as inconsistent expression of normative terms, unclear legislative facts and unclear positioning of legal interests. Intuitively, the above problems can be effectively solved through the introduction of Nebenstrafrecht(secondary criminal law), but it is difficult to put into legislative practice in the short term due to the inertia of legislative thinking and the restriction of legislative techniques. At present, the predicament of "mechanical connection" can be overcome through collaborative legislation model to realize the effect of connection of norms, which can be regarded as a transitional scheme of "the Era of Pre-Nebenstrafrecht". Specifically, the collaborative legislation model is focused on the joint participation of multiple subjects of criminal law and laws of other areas in the legislative process, sufficient explanation of the issue of objects involved in the connection of norms and the legislative reasons. At the same time, we should also change the inherent concept of "criminal law can not be modified frequently", change the current "accumulation-style" amendment mode into "fragmented" one, and complete the connection of norms in the amendment to criminal law together with the formulation or revision of relevant non-criminal laws.