《刑法》第1条:刑法的具体概念与根本原则

刑法学应当立基于刑法的具体概念而不是抽象概念。刑法概念具体化的法条依据是《刑法》第1条。学界不把该条作为刑法的概念问题而是作为刑法概念之后的刑法根据来理解是值得商榷的。刑法概念具体化的理论进路在于找到刑法内容的两个来源,明确宪法作为两个来源及其关系之根据的意义,并全面理解刑法的两大功用。《刑法》第1条的理论地位是刑法学的基石概念,其规范地位则是刑法根本原则,可名之曰"刑法正义原则"。根本原则统摄两大基本原则:第2条的法益保护原则和第3至5条的罪刑法定原则。刑法根本原则的司法实践要讲司法逻辑,控辩审对《刑法》第1条的落实各有其功能。

The First Clause of the Criminal Law:Specific Concepts of the Criminal Law and Its Fundamental Principle

The criminal lurisprudence should be built on the foundation of its specific concepts rather than abstract ones. The provision basis to embody the concept of the criminal law is the First Clause of the Criminal Law. It is debatable that the academia interprets this Clause as the ground of the criminal law fol-lowing the concept rather than the concept itself. The theoretical approach to embody criminal concepts lies in seeking for two sources of the content of the criminal law,defining the significance of the Constitution as the foundation of the two sources and their relationship,and comprehensively understanding two functions of the criminal law. The theoretical status of the First Clause of the Criminal Law is the basic concept of the criminal lurisprudence and whose normative status is the fundamental principle of the criminal law,which can be called as“the lustice principle of the criminal law”. The fundamental principle governs two basic doctrines:one is the legal interest protection stipulated in the Second Clause and the other is the statutory crime and punishment in the Clauses from the Third to the Fifth. Judicial practice based on the fundamental principle of the criminal law ought to abide by the ludicial logic,and the prosecutor,the defendant and the trial also have their respective functions to perform the First Clause of the Criminal Law.