宽严相济刑事政策适用的理性思考——以我国法律传统为视角

近年来,随着学界对宽严相济刑事政策的关注和推崇、党和政府对宽严相济刑事政策的肯定和推广、实务界对宽严相济刑事政策的高调贯彻,"宽严相济"几乎成了法律界的流行语。然而,如果我们从中国法律传统的角度,审视宽严相济刑事政策的司法现状;以构建成熟法治国为目标,反思该刑事政策的司法运作。就不难发现,由于司法传统的浸染,宽严相济的政策性适用已不适当地挤占了立法空间。法治话语下的宽严相济刑事政策必须坚持法律是基础、政策是导向的定位原则。刑事法律也应当根据刑事政策之需要,及时进行立法、修改、补充。

Rational Ponder about Criminal Policy of Temper Justice with Mercy and Rules Suitable——Take our country law tradition as the angle of view

In recent years,strict aided along with the educational world to the width the criminal policy attention and the esteem,the party and the government strict aids the criminal policy affirmation to the width and the promotion,the solid service strict aids the criminal policy high-sounding talk implementation to the width,strictly caused the width to aid has nearly become the law catch word.However,if we carefully examine the width from the Chinese law tradition angle to aid strictly the criminal policy present situation,take constructs mature legal state to reconsider this criminal policy judicial operation as the goal,is not difficult to discover: Because judicial tradition being contaminated,the width strict aids the policy was suitable not not suitably has occupied the legislation space;Under the government by law words width strict aids the criminal policy to have to persist the law is the foundation,the policy is the guidance localization principle,the criminal law also must need of according to the criminal policy,promptly carries on the legislation,there vision,the supplement.