积极刑法观的反思与批判

面对日益增加的社会风险,我国刑事立法不断扩张处罚的范围,这种立法的积极姿态也得到了学者的认同,从而形成了积极刑法观的主张。积极刑法观的含义包括理念、立法、司法三个方面,其与预防刑法观、风险刑法观与功能主义刑法观都存在不同。无论从现实还是从法理层面而言,积极刑法观都存在许多疑问。在现实层面,我国现行刑法的结构并非是厉而不严,而是又严又厉。刑法的但书规定意味着立法采取定性加定量的模式,这与积极刑法观的立论或多或少存在冲突。我国司法机关一直采取扩张解释乃至于类推解释来适用刑法,因此指望通过司法实践来限缩处罚范围的观点并不现实。在法理层面,积极刑法观导致了刑罚权的过度扩张,冲击了人的基本自由,因而抵触宪法;同时它也违反了谦抑原则和比例原则的具体要求,并且作为其依据的积极一般预防理论的根基并不稳固。在方法论上,必须重提"李斯特鸿沟"的重要法治意义。

Reflection and Critique on the Concept of Positive Criminal Law

In modern society, in the face of increasing social risks, China’s criminal legislation continues to expand the scope of punishment, this positive attitude of legislation has been recognized by scholars, thus forming a positive view of criminal law. The concept of positive criminal law view includes three aspects:idea, legislation and judicature. It is different from the view of preventive criminal law, risk criminal law and functional criminal law. Whether from the reality or from the legal theory level, there are many doubts about the positive criminal law view. In reality, the structure of China’s current criminal law is not harsh and lax, but strict and severe. The proviso of criminal law means that legislation adopts qualitative and quantitative mode, which is in conflict with positive criminal law view. The judicial organs in China have always adopted the expansive interpretation and even the analogical interpretation to apply criminal law,so it is not realistic to expect to limit punishment through judicial practice. At the jurisprudential level, the positive view of criminal law has led to the excessive expansion of the power of punishment, which has impacted the basic freedom of human beings. It thus violates the Constitution, and it violates the specific requirements of the principles of moderation and proportionality. Moreover, the theory of active general prevention on which it is based is not well grounded. In terms of methodology, the important significance of rule of law of "Liszt Gap" must be re-mentioned.