包容性刑事法治国之构建与提倡——刑事法治国基本模式之冲突与出路

刑事法治国包含形式的刑事法治国与实质的刑事法治国。两者的冲突体现为刑法规范的可预测性或安定性与刑法规范的妥当性之间的对立,并在中国的刑事立法与司法两方面展开,成为法治国建构中的最大难题。对于形式的与实质的刑事法治国的取舍问题,不可过于置重其一,而应采取以形式法治国为主、实质法治国为辅的两者兼并吸收的包容性刑事法治国模式。在坚持形式正义优先和形式合理性的前提下,以实质正义为价值基础对刑法规范进行合目的性的实质解释,以此为基点,在中国的刑事立法与司法层面展开刑事法治国的建构。

Construction and Advocacy of a Compatible Model of Rule of Criminal Law: Conflict and Resolution

Rule of criminal law consists of both formal and essential elements,the conflict of which reflects the opposition of predictability and appropriateness of the norms of criminal law and it often thwarts the criminal legislative work and justice in China,presenting a knotty problem in government of the country in accordance with a system of law.While weighing the formal and the essential elements,neither of them should be overlooked.Rather,a compatible model of rule of criminal law should be adopted that stresses the former and at the same time takes the latter as a supplementary one.On the premise that formal justice and justifiability is maintained and taking essential justice as a value basis,we should interpret the norms of criminal law purposefully and substantively,based on which,constructive activities in criminal legislative and judicial areas may well be development in China.