酌定不起诉与非刑罚处罚的刑事教义学一体化解释

Integrated interpretation of criminal dogmatics of discretionary nonprosecution and non-penalty punishment

刑法学界一般认为,刑法第三十七条规定的非刑罚处罚措施本应由法院判决决定,但刑事诉讼法以及司法解释却将这一权力赋予了检察机关在酌定不起诉程序中适用。这似乎违背刑事诉讼法第十二条关于宣判有罪的规定,但这只是一种形式上的冲突,完全可以经过刑事法教义学的一体化解释方法将冲突化解。将两者放在功利主义视野下可以发现,非刑罚处罚是目的刑论的产物,而酌定不起诉程序则源于诉讼经济原则,二者同属功利主义法学,具备刑事法哲学的一致性,满足在程序正义的前提下产生实体正义结果的刑事法原理。相关反对意见对刑事法的基本概念理解有误,认为割裂了刑法与刑事诉讼法的联系,难以发挥刑事一体化的真正功能,不应当被采纳。

Judging from the overall provisions of China’s criminal law,the criminal law community generally believes that the non-penalty punishment measures stipulated in Article 37 of the criminal law should have been decided by the court,but the criminal procedure law and judicial interpretation have given this power to the procuratorial organs in the discretionary non-prosecution procedure.It seems to violate the provisions of Article 12 of the criminal procedure law on the conviction.However,this is only a formal conflict,which can be resolved by the integrated interpretation method of criminal law dogmatics.From the perspective of utilitarianism,it can be found that non-penalty punishment is the product of the theory of purpose punishment,while the discretionary non-prosecution procedure is derived from the principle of litigation economy.Both of them belong to utilitarian law,so they have the consistency of criminal law philosophy and meet the criminal law principle of generating substantive justice results under the premise of procedural justice.The relevant objections have a wrong understanding of the basic concepts of criminal law.They believe that the connection between criminal law and criminal procedure law is separated,and it is difficult to give full play to the real function of criminal integration and should not be adopted.