刑法“事先法”之理念导读

刑法不是保障法,刑法具有鲜明的＂事先法＂特征。从罪刑法定的实质侧面看,刑事立法的事先价值判断决定了刑法不是保障法。刑法保障法存在语义误读之嫌,刑法的正义价值要求刑法与其他部门各司其责、平起平坐。我国的犯罪概念的立法模式是＂定性＋定量＂,定性和定量分别表明了刑法的＂事先性＂与＂克制性＂。刑法的边界是＂人类行动的自觉结果＂,在原初意义上具有＂事先性＂。

Guidance for the Concept of Advanced Nature of Criminal Law

Criminal law is considered as protection law,but criminal law has distinctive＂advanced＂ characteristic..From the substantive aspect of criminal law,the advanced value judgments determine criminal law is not protective.＂Criminal protection law＂has semantic misunderstanding,a conversion from semantics to justice would tell that criminal law and other department law is coordinated and equal.The legislative mode of crime both in qualitative and quantitative way display respectively as advanced and restraint,which is reasonable to conclude the advance nature of criminal law.The fact that the boundary of criminal law is the conscious result of human action decides that criminal law is originally advanced.