罪刑法定原则论纲

罪刑法定原则是刑法的根本原则,它存在的形式前提是宪法中规定的法治原则,而实质前提则是民主主义与自由主义。作为刑法原则,罪刑法定原则在形式上表现为四个派生原则,在实质上就是人权保障原则。由于两大法系对法治主义理解的不同,所以罪刑法定原则在大陆法系表现为面向实体的原则,而在英美法系则表现为面向程序的原则(实体的正当程序原则)。罪刑法定原则的实现,首先是作为立法原则,其次是作为司法原则,其不是实现在刑法运行的某一阶段,而是实现在刑法运行的全过程中。

Outline the Principle of Crimes and Punishment Stip ulated by Law

The principle of crimes and punishment stipulated by la w is a basic one in criminal law. The principle of legality stipulated in consti tution is its formal prerequisite and democratism and liberalism are its practic al ones. The principle of crimes and punishment stipulated by law has four spin -offs formally, which are the principle for human rights practically. Because t here are different comprehensions about the notion of rule of law between the tw o legal families, the principle of crimes and punishment stipulated by law is a substantive one in civil law but a procedural one in common law, that is princip le of due process. The principle of crimes and punishment stipulated by law is r ealized as principle for legislation firstly and as principle for justice second ly. It is fulfilled not at some stage but during all process of the operation of criminal law.