我国古代刑法“比附类推”制度的发展与“罪刑法定”原则在我国的最终确立

On Development of "Comparison and Analogy" of Ancient China's Criminal Law and Ultimately Establish of Principle of "a Legally Prescribed Punishment for a Specified Crime

我国比附类推制度可追溯于周代,随后各朝代均推行运用,但不同程度作了限制。新中国1979年制定的刑法也规定了类推制度,但1997年刑法修订时废除了这一制度,正式确立了罪刑法定原则。虽然比附类推制度被废除,但这一思想仍然会影响罪刑法定原则的贯彻。

The system of comparison and analogy can ascend to Zhou dynasty, and was applied by following dynasties with restriction in different extent. The analogy provision was prescribed in 1979 Criminal Law and abolished in the amendment in 1997, and the principle of a legally prescribed punishment for a specified crime established formally. Although the system of comparison and analogy was abolished, the idea would still affect the implementation of the principle of a legally prescribed punishment for a specified crime.