论刑法解释的基本原则

对刑法解释基本原则的研究,在方法论和存在论上必然遭遇到语言解释学上不可避免的部分和整体之间的循环问题。确立刑法解释的基本原则受几个关系的影响:哲学解释学、一般法律解释和刑法解释学的关系;刑法的基本原则和刑法解释的基本原则之间的关系;刑法的基本思想和刑法解释的基本原则之间的关系。“以政策为指导原则”、“整体性原则”、“明确具体原则”不是刑法解释的基本原则。我国刑法解释的基本原则有三个:合法性原则,它是刑法解释的形式规制;合理性原则,它是刑法解释的实质规制;合目的性原则,它是刑法解释原则的冲突之整合规则。

On the Basic Principles of Criminal Law's Interpretation

In the research of the fundermental principals of the interpretation about criminal law, with regard to methodology and ontology it is inevitable to meet with the problem of circulation between proportion and intergrity, which always exists in the hermeneutic of language, the establishment of the fundermental principals of the interpretation about criminal law has been influenced by several factors, that is the hermeneutic of philosophy, the relation between commonly interpretation of law and the interpretation of criminal law, the relation between the fundermental principals of criminal law and the fundermental principals of the interpretation about criminal law, and the relation between the fundermental ideology of criminal law and the fundermental principals of the interpretation about criminal law. The principal of leaded by policy, intergrity and specificity can not be considered as the fundermental principals of the interpretation about criminal law. In China , there are there fundermental principals of the interpretation about criminal law, as follows, the principal of validity, rationality and being equal to the intention, the first is the formal rule of the interpretation about criminal law;the second is the substantial one and the third adjusts the conflicts between the principal of validity and rationality.