刑法解释限度的辨析

Analysis on the Limit of Criminal Law Interpretation

刑法解释限度存在理论争议和实践判断两个层面的问题。理论层面,关于刑法解释限度存在可能文义说、国民预测可能性说、犯罪定型说、语义与规范意义相互调适说等不同观点。相关学说或多或少都存在理想化、难以把握等问题。法律文本的开放性使得可能文义说基本不可能为刑法解释划定边界,国民对刑法规范的预测与刑法规范实际含义间的距离也使国民预测可能性说显得过于理想化,犯罪定型说仅适用于构成要件解释且有同义反复之嫌,语义与规范意义相互调适说则存在较为含混难以把握的问题。刑法解释的限度实际上在于法律共同体的共识,共识认为没有越界的,即使超越了可能文义,也在解释允许的限度之内;共识认为已经越界的,就应当认为已经超越了解释允许的限度。实践层面,数字和网络时代给刑法解释限度的认定带来了很多新的具体问题,这些问题在刑法解释限度的共识标准下都能得到较好的解决。

The limitation of criminal law interpretation has disputes from theory and practice. At the theoretical level, there are different views on the limitation of criminal law interpretation, such as the theory of possible literal meaning, the theory of national prediction possibility, the theory of crime stereotyping, and the theory of mutual adaptation of semantic and normative meanings. Relevant theories, to some extent, are either idealistic or difficult to grasp. The openness of the legal text makes it impossible for the theory of possible text to delimit the boundary for the interpretation of criminal law. The distance between the national prediction of criminal law norms and the actual meaning of criminal law norms also makes the theory of national prediction possibility too idealistic. The theory of crime stereotyping is only applicable to the interpretation of criminal constituent elements and has the suspicion of repeated synonyms. The theory of mutual adaptation of semantic and normative meanings is ambiguous and difficult to grasp. In fact, the limit of criminal law interpretation lies in the consensus of the legal community. The consensus believes that there is no beyond the boundary, even if it exceeds the possible meaning, it is also within the allowable limit of interpretation;If the consensus believes that the boundary has been exceeded, it should be considered that it has exceeded the limits allowed by interpretation. At the practical level, the digital and network era has brought many new specific problems to the recognition of the limits of criminal law interpretation, which can be better solved under the consensus standard of the limits of criminal law interpretation.