德国近五十年刑事立法述评

自1969年德国刑法大改革至今的五十年间,德国的刑事立法活动非常频繁。在此期间,德国立法机关不但对《刑法典》总则犯罪论部分的规定进行了彻底的修订,而且针对犯罪的法律后果以及刑法分则乃至附属刑法中的诸多罪名进行了持续的改革,在恐怖主义犯罪、妨害公务犯罪、毒品犯罪以及保安监禁等领域尤其如此。整体而言,德国立法者在过往半个世纪中日趋侧重功能主义的积极刑事立法观,导致德国刑法逐步从传统法治国背景下的法益保护法和市民防御法转向以社会控制为主导的国家干预法和社会防卫法,造成了诸多难以与现有法律体系和学说理论相协调的象征性立法。我国应当从德国近五十年的刑事立法中吸收其先进经验,对其中的弊端也要引以为戒。

A Review of Criminal Legislation of Germany in Recent Fifty Years

Since the criminal law was reformed in 1969,the criminal legislation activities have been carried out very frequently in 50 years in Germany.During this period,German legislators not only revised the articles on the Theory of Crime in the General Provisions of the Criminal Code thoroughly,but also conducted continuous reform of the legal consequences of the crime and many crimes in the Specific Provisions of Criminal Code and even crimes in the accessory criminal law,especially in areas such as terrorist crimes,crimes of disrupting public service,drug-related crimes,and preventive detention.On the whole,German legislators have increasingly focused on the proactive outlook on criminal legislation with particular emphasis on functionalism in the past half century,which gradually transforms German criminal law from the legal interest protection law and the citizen's defense law to the state intervention law and social defense law with society control as the orientation,and also causes some symbolic legislation which are hard to coordinate with existing legal systems and theories.China should absorb advanced experience from the criminal legislation of Germany in the past 50 years and take its drawbacks as a warning.