空白刑法规范的罪刑法定机能——以现代法治国家为背景的分析

现代法治国家兼具自由法治国与社会法治国、形式法治国与实质法治国的双重性格,这导致现代行政法的使命由单一阻止行政权的扩大化到兼而具有改善国民经济生活以完成福利国家的任务。受此影响,许多国家突破了以往在刑法体系中只规定自然犯的传统框架,越来越多地在刑法中通过空白刑法规范的方式规定行政犯。用法治国的罪刑法定主义衡量,空白刑法规范既符合罪刑法定主义的民主法治原则和法律专属性原则,同时也是罪刑法定主义之明确性原则的体现和运用,是与现代法治国思想及罪刑法定原则相一致的一种刑法立法模式。

On the Function of Blank Criminal Rules

Modern state governed by rule of law has the double characters of liberal and social state governed by rule of law, as well as formal and essential state governed by rule of law. Accordingly, the task of modem administrative law not only should prevent administrative power expanding in order to satisfy the liberal state's needs, but also should carry out the aim of welfare state to improve and guarantee people' s existence living level. The criminal law legislation deeply affected by the above theory. Including China, many countries begin to regulate administrative offense besides natural crime in criminal law with blank-norms. The blank - norms of criminal law is helpful to realize social welfare by administration of modem state governed by rule. It also plays an important role in sustaining criminal law's authority and its flexibility. The same as full criminal law norms, the blank - norms of criminal law is in conformity with the principle of nullum crimen sine lege.