重大公共卫生事件下的刑事政策模式

坚持道德理性而否认规范理性,或者主张规范理性而排斥道德理性,都是有失偏颇的。规范目的与整体法秩序目的是两种不同层次的目的,两者互补互济、相辅相成,能有效衡平社会伦理道德与刑法规范的关系,并使刑法适用保持活性与弹力,充分迎合司法实践需要。信守规范目的而忽视整体法秩序的刑事政策,有时不利于维护社会共同体利益。信奉整体法秩序目的而忽视规范的刑事政策,可能不利于保护共同体成员的个人权益。重大公共卫生事件下,传统刑事政策面临诸多困境,应贯彻刑事政策发展模式。刑事政策发展模式要求正当事由得到现实化延伸,合理调适定罪量刑标准,扩展刑法解释体系范畴。刑事政策发展模式下,需要严控适用范畴,合法约束模糊管理,有效限制道德理性和规制辩证逻辑。

Criminal Policy Pattern in Major Public Health Emergencies

It is unfair to insist on moral reason while ignoring or even denying normative reason, or to advocate normative reason while ignoring or even rejecting moral reason. Normative purpose and overall legal order purpose are two different levels of purpose. The governance goal pursued under normal circumstances is to maintain a stable and constant social order. Since the stability and clarity of norms are conducive to maintaining a stable and constant social order, the basic position of criminal law norms in the criminal law system is generally maintained under normal circumstances. In the event of major public health emergencies, the normal social order is broken, and it is necessary to replace the normal normative purpose with the purpose of the whole legal order, so as to restore and maintain the normal social order. The purpose of regulation and the purpose of overall legal order supplement and complement each other to effectively balance the relationship between social ethics and criminal law norms, keep the application of criminal law active and elastic, and fully meet the needs of judicial practice. A criminal policy that abides by the normative purpose but ignores the overall legal order is sometimes not conducive to safeguarding the interests of the social community. A criminal policy that embraces the purpose of the overall legal order but ignores norms may be detrimental to the protection of individual rights and interests of community members. Under the circumstance of normal governance, China’s basic experience in law-based governance is to adhere to the basic position of the mode of criminal policy rules in social governance. Under special circumstances such as major public health emergencies, adhering to the development mode of criminal policy is in line with the central government’s major policy requirements of strengthening and innovating social governance. Under the circumstance of major public health emergencies, the traditional criminal policy is faced with many difficulties, such as the challenge posed by fuzzy management to rule governance, because the traditional criminal policy is relatively poor in the interpretation of conviction and sentencing, so it has difficulties in dealing with the impact of major public health emergencies. At such a time, it is difficult to restore and maintain the normal social order if we adhere to the pure purpose orientation of norms. Implementing criminal policy development mode is the rational choice of criminal policy in major public health emergencies. The development mode of criminal policy requires the extension of legitimate causes in reality, the reasonable adjustment of conviction and sentencing standards, and the expansion of the scope of criminal law interpretation system. Under the development mode of criminal policy, it is necessary to strictly control the scope of application, legally restrict fuzzy management, and effectively limit moral reason and dialectical logic of regulation.