从历史角度看刑法判例制度在中国的发展前景

大陆法系和英美法系有融合的趋势,但这种融合并不是对同一种法律关系可以同时采用制定法和判例法加以调整的融合,就我国的刑事立法和刑事司法现状而言,推行判例法无异于一种海市蜃楼般的尝试。只有从制定法的前提出发,探索科学的定罪量刑之道,才能推动我国刑事科学的研究。

Viewing the developing prospects of the system of the criminal case law in China from a historic viewpoint

The genealogy of law in the (European) Continent and that in Britain and America tend to blend, but such blend is not to readjust to simultaneously adopting the written law as well as the case law with regard to the same kind of legal relationships. When it comes to the present situation of the criminal legislation and judicature in China, it’s a somewhat imaginary try to practice the case law. To push forward the research of the criminal science in China, we should probe scientific methods of condemnation and penalty measurement based on the written law.