刑法解释立场的历史考察——主观解释论之提倡

刑法解释经历了从主观解释论到客观解释论的演进过程,现阶段,从世界范围来看,客观解释论正成为一种有力的学说。在不同的历史时期,主观解释论与客观解释论所处的地位并不相同,在经历了罪刑擅断、人治统治的历史之后,人们对立法者充满了无限的期待,体现在刑法解释上就是要求坚持主观解释论。而当法治的进程进一步推进,人们已经不满足于法律的安定性,还要求法律实质上的公平、公正。联系社会发展以揭示法律内涵,遵守成文法不囿于文字本身的刑法解释客观论,遂成为刑法解释论上的特色。从历史的角度看,法治理念、法官素质、刑法实施的时间与刑法解释立场的选择具有密切的关系。我国是经历了几千年的人治统治的国家,法治建设才刚刚起步,法官素质还有待于进一步提高,刑法实施仅十余年,这要求我国在刑法解释上应采主观解释论。

A Study on the Stand of the Interpretation about Criminal Law According to Historical View——Advocating the subjectivism

The interpretation of criminal law has experienced from subjectivism to objectivism.Now,the objectivism is becoming a trenchant theory in the world.In different period the subjectivism and objectivism has different position.After the period of abusing the criminal law and rule of man,people put much expectation on legislator,people need subjectivism in the interpretation of criminal law.As accelerating the course of rule of law,people are not content to the stability of law,they hope that law become fair and just in essence.The objectivism that revealing the essence of law by social development and abiding criminal law but not incarcerated in it becomes the characteristic in the interpretation of criminal law.From historical view,we'll find the idea of rule of law,the qualities of judge,the time of the implement of criminal law has a close relationship while choosing the stand of the interpretation about criminal law.Our country has experienced thousands of years that rule of man,the establishment of rule of law is just beginning,the qualities of judge need heightening,and the criminal has been put into use only ten years,all of this request us to adopt the subjectivism.