对形式主义罪刑法定原则渊源的再反思

产生于贝卡利亚,成型于费尔巴哈的罪刑法定原则,是近代欧洲国家加强王权和民族统一的政治需要的产物。罪刑法定原则的内容显示它本质上是为了限制法官权力的纯粹形式主义的法律技术规则。贯彻罪刑法定原则与保障公民自由并无必然联系。罪刑法定原则后来由形式主义走向实质主义,说明只有刑法的实体内容合理才能真正保障公民自由。

Reflection on Formalistic Theory of the Principle of Legality

Beccaria explained the idea of the principle of legality in his famous book On Crime And Penalty.Feuerbach put forward Nullum crimen sine lege.Because of which,Feuerbach was considered as the first scholar who posed the principle of legality clearly in the history.The reason the principle of legality emerged in that time is that the King wanted to strength the monarchical power and united more areas into a big country.The context of the four principle derived from the principle of legality indicate that they are all formalism rules.They have no direct relationship with freedom.Only if the content of criminal law is reasonable can the principle protect freedom.