我国刑事政策与刑法的关系

The Relationship between Criminal Policy and Criminal Law in China

刑事政策出现之初便与刑法如影随形,我国刑事政策与刑法的关系在司法实践中不断发展变化,从刑事政策替代刑法到“灵魂”说,体现了我国对两者关系认识的不断深入。现阶段“灵魂论”已成为我国学界的主流观点,同时也存在一些对“灵魂”论的质疑。为力求在两者之间达到平衡使得两者朝着科学合理、不断完善的方向发展,文章从历史的角度以及学者的不同观点出发。总结历史经验,分析各观点的优劣以试图讨论刑事政策与刑法关系的最佳状态。

At the beginning of the emergence of criminal policy, it has been closely related to criminal law. The relationship between criminal policy and criminal law in China has been constantly developing and changing in judicial practice, from criminal policy replacing criminal law to the “soul” theory, reflecting China’s continuous deepening of understanding of the relationship between the two. At present, the “soul theory” has become the mainstream viewpoint in China’s academic community, and there are also some doubts about the “soul” theory. In order to achieve a balance between the two and move them towards a scientifically reasonable and continuously improving direction, the article starts from a historical perspective and different viewpoints of scholars, summarizes historical experience, analyzes the strengths and weaknesses of various viewpoints, and attempts to discuss the optimal state of the relationship between criminal policy and criminal law.