效率与公平:持有型犯罪的法律经济学思考

Efficiency and Fairness:Thinking on the Crime of Illegal Possession from the Aspect of Economic Laws

效率与公平是一个历久弥新的法律经济学课题。持有型犯罪与普通型犯罪对效率与公平的影响区别甚大。借鉴法律经济学长于利用的模型、公式分析两类犯罪的犯罪构成、司法资源量 (成本投入 )和犯罪惩治量 (收益产出 ) ,显现出持有型犯罪的刑法设定 ,提高了惩治此类犯罪的效率 ,但降低了刑法惩治犯罪所应实现的公平价值。在法律经济学视野中 ,合理框定效率与公平的价值目标 ,是未来我国刑法制度理性化与日趋完善的应有之义。

Efficiency and fairness is an old and gradually reborn problem about economic laws. The crime of illegal possession is different from the type of common crime in affecting efficiency and fairness. The paper analyzes the composition of judicial resources and the quantity of criminal castigation of these two types of crimes using such the means that are commonly used in the scope of economic laws as the models and formulae. The authors think that setting the crime of illegal possession increases the efficiency of castigating this kind of crime, but doesn't accomplish fair value which criminal law should do. Furthermore, in the sight of economic laws, rationally ruling the value goal of efficiency and fairness is a necessary connotation that the system of criminal law in China will be rationalized and become more consummate in the future.