我国应当坚持统一刑法典立法模式

China Should Adhere to the Legislative Model of Unified Criminal Code

我国曾经在20世纪末就附属刑法立法进行过大量探索,但在1997年大规模修订刑法时走向了统一刑法典立法模式。近年来,在个别法律草案中,曾提出设立独立的罪刑规范,但相关犯罪的增设最终仍通过刑法修正案加以解决。虽然有不少学者呼吁在行政法及经济法中独立规定行政犯的构成要件和法定刑,但是,其方案在我国的可行性值得质疑。不同的刑法立法模式均有其优点,谈不上哪一种选择绝对优越,如何使立法更为实用和符合国情是特别需要考虑的。在我国,如果采用附属刑法立法模式,难以抑制犯罪范围大幅度扩张的冲动;行政刑法与治安管理处罚法的关系变得很微妙、复杂;附属刑法的重罚倾向明显,容易引发刑罚趋重攀比;犯罪之间的交叉、重叠关系可能徒增适用上的困难;行政法的旨趣是干预,其中所混杂的刑法规范在立法过程中难以得到充分讨论。在采用附属刑法立法模式的国家,学者们关于部分重要的附属刑法条文应回归到主刑法中的“反向呼吁”,值得我们思考。基于此,我国当下统一刑法典的立法模式定位准确,未来仍应继续坚持。

At the end of the last century in China,a lot of explorations was made on the legislation of subsidiary criminal law,but a unified criminal code was adopted when the criminal law was revised on a large scale in 1997.In recent years,it has been proposed in individual draft laws,to establish independent norms of crime and punishment,but the addition of related crimes is still resolved through amending the criminal law.Many scholars have also called for the independent stipulation of the constitutive elements and legal punishment of administrative crime in the administrative law and the economic law,though the feasibility of which in China is questionable.In fact,different legislative models of criminal law have their respective advantages,and none is absolutely superior.Which one is more practical and suits China’s conditions is the question demanding investigation.If the subsidiary legislation model is adopted in China,many problems will arise:first,it is difficult to restrain the impulse to expand the scope of crime;second,the relationship becomes very delicate and complicated between the administrative criminal law and the laws and regulations on public security administration punishment;third,the obvious tendency of heavy punishment in subsidiary criminal law will cause rivalry in penalty imposition;fourth,the overlapping crimes may increase the difficulties in the application of laws;fifth,criminal norms,mixed in the administrative law,will be hard to be fully discussed in the legislative process,as the objective of administrative law is interventive.Therefore,it is worth paying attention to the"opposite appeal"to return to the primary criminal law concerning some key subsidiary criminal provisions by scholars in countries adopting the legislative model of subsidiary criminal law.To conclude,the legislative model of China’s current unified criminal code is proper and should be kept in the future.