理性建构中国刑法私法化之路

过于注重惩罚的公法建构,虽使刑法满足了预防犯罪的需要,但却漠视了被害恢复的积极价值。随着恢复正义理论的异军突起、社会效果的日渐重视以及私法精神对正统刑法的反攻,刑法私法化模式逐步成型:因刑事和解与二元化犯罪模式能够实现恢复被害和预防犯罪之双重目的,已成为当代刑法私法化的基本类型。其中,固守国家对犯罪治理的垄断,明确基本类型及其适用对象,把刑法谦抑作为判断基准,就是理性建构中国刑法私法化的基本路向。

Rationally Constructing the Privatization of the Criminal Law of China

Too much attention has been paid to the construction of punitive public law, which, though be- ing the requirement of prevention of crime, leads to the ignorance of the positive effect of victim＇ s recover. A- long with the emergence of restorative justice theory, much importance has been attached to the social effect, and the theory of private law challenges the orthodox criminal law. The model of privatization of the criminal law has been shaped gradually. Criminal reconciliation and the dual model of crime, as the contemporary basic model of the privatization of the criminal law, can help the victim to recover and prevent crime. Rationally con- structing the privatization of the criminal law of China, we must adhere to the government＇ s authority in crack- ing down crime, clarify the basic models and the applicable targets, and take the austerity of criminal law as the benchmark of judgment.