刑法的修改：轨迹、应然与实然兼及对刑法修正案(八)的评价

以往刑法的修改,显示出增设新罪、加重法定刑与限制有利于犯罪人的制度的适用三大轨迹,标示着严刑始终是指引刑法修改的主旨。然而,立足于刑法的效益、公正与人道三大基本价值的要求,以严刑为主旨的刑法修改,在很大程度上是非理性的。业已通过的刑法修正案(八),虽因表面看来已开始摆脱严刑思想的支配而备受热捧,但是,实际上严刑仍是其主宰,因而承续了以往刑法修改的诸多非理性因素。相应地,修正案(八)只不过是刑法的再一次忧多于喜的修改。

Modification of Chinese Criminal Law: Tract, Ideal and Reality

Up to the present, the Criminal Law of P. R. C. has been modified for 32 times since it was promulgated in 1979. Taking a comprehensive view of the previous modifications of criminal law as a whole, we may find the following three tracks, i.e., adding new criminal charges, improving the extent of punishment, and limiting the application of institutions in favor of the criminals. So we may conclude that strict punishment is always the major idea directing the modifications of criminal law. As the three essential values of criminal law, efficiency, justice and humanity have a series of intrinsic requirements for its modification. Efficiency requires the modification to accord with validity, benefit, necessity and frugality, while justice requires equivalence, equality, lenity and encouragement. Still, humanity requires the fundamental rights of criminals not to be deprived and the essential treatments of them to be guaranteed by criminal law. Any modification running counter to these requirements is irrational, so are the past modifications which took strict punishment as the major idea. The 8th amendment to criminal law, which has been passed recently, is well-praised since it begins to shake off the domination of strict punishment thoughts apparently. But in fact, the thoughts of strict punishment still dominate the whole amendment, thus it continues many irrational factors of previous modifications. On the one hand, it accords with the requirements of humanity and justice since it limits the application of death penalty and adds some institutions of lenient punishment. On the other hand, it runs counter to the requirements of efficiency and justice since it adds some new charges unnecessarily, aggravates the component of punishment under some circumstances and limits unnecessarily the application of institutions in favor of criminals further. Accordingly, the 8th amendment to criminal law is only a modification saying disturbance rather than joyance once more.