| 刑法解释学的独立品格 |
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| 引用本文： | 徐岱. 刑法解释学的独立品格[J]. 法学研究, 2009, 0(3): 23-38 |
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| 作者姓名： | 徐岱 |
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| 作者单位： | 吉林大学法学院 |
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| 摘 要： | 刑法解释学属于广义刑法学的一个核心分支学科，并具有自身独立的学科品格。其独立的学科品格包括三个内在的学科独立基本要素和三个外在的学科独立条件。前者是指刑法解释权、刑法解释行为和刑法解释结论；后者包括：狭义刑法学无法涵盖刑法解释学，即刑法解释学不等同于狭义刑法学；广义刑法学本身已昭示了刑法解释学自身的独立性；刑法解释学的产生和发展遵循着法学学科独立的一般性规律。倡导刑法解释学的学科独立品格，其价值在于：推进刑法学的学科应用功能；纠偏刑法学研究者热衷于铸造恢宏的概念化法学架构而忽视刑法应用实效研究的倾向；彰显刑法解释学价值判断的实践属性。
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| 关 键 词： | 刑法学 刑法解释学 学科独立 刑法解释学体系 |
The Independent Character of Criminal Law Hermeneutics |
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| Xu Dai. The Independent Character of Criminal Law Hermeneutics[J]. Chinese Journal of Law, 2009, 0(3): 23-38 |
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| Authors: | Xu Dai |
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| Abstract: | Criminal law hermeneutics, being a core branch subject of criminal jurisprudence in broad sense, has its own separated subject characters, which include three internal basic elements and three external conditions. The former refer to the power, conduct and conclusion of criminal law interpretation. As to the three external conditions, firstly, criminal law hermeneutics can not be covered by criminal jurisprudence in narrow sense, that is, these two are different from each other. Secondly, criminal jurisprudence in broad sense has already made clear the independence of criminal law hermeneutic. Lastly, the emergence and development of criminal law hermeneutics follows the general rule of an independent legal subject. The independence of criminal law hermeneutics can promote the application function of the subject of criminal law, can rectify the tendency that researchers are keen to build the grand conceptualization frame of law, but ignore the effectiveness of the application of criminal law, and can highlight the practical attribute of its value judgment. Criminal law hermeneutics system is the organic unified system based on a certain principles and rules, including the basic theory, ontology, the application theory and the practice of criminal law hermeneutics. Advocating the independent character of criminal law hermeneutics is neither a grandstanding academic, nor an academic bias. It is urged by the integration of the theory value and application value of criminal jurisprudence, the pursuit of combining the justice of criminal legislation with the specific facts of concrete cases, and the realization of the ultimate goals of criminal law, i.e. justice, stability and harmony. Such urgencies opens up the living space and application field which the criminal law hermeneutics as a subject needs. At the same time, the power, conduct and conclusion of criminal law interpretation, as the basic elements of criminal law hermeneutics, demonstrate the self-consistent of the subject. Concerning, advocating and promoting the subject independence of criminal law hermeneutics should be regarded as positive academic pursuit, and scholars should take this as their responsibility. |
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| Keywords: | criminal jurisprudence criminal law hermeneutics subject independence criminal law hermeneutics system |
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