刑法的刑事政策化论纲

刑法的刑事政策化,是在刑法自身需求和刑事政策引导两方面因素共同作用下的产物;其中,刑法自身的需求是内因,而刑事政策的引导则是外因。犯罪原因的多样化、刑罚根据的科学化和刑罚的人道化是刑法刑事政策化的理论基础。刑法刑事政策化的核心在于刑法要自觉地接受刑事政策的指导,无论是刑法的制定还是刑法的运行,都要纳入刑事政策的框架,在刑事政策的大视野中予以把握。但是,刑事司法在接受刑事政策指导的时候,应该将刑事政策的贯彻和落实严格控制在现行刑法规定的范围内,绝不能超越刑法的规定去执行刑事政策。

A Tentative Research on the Tendency of Turning Criminal Law into Criminal Policy

The turning of criminal law into criminal policy is the result of the joint action produced by the two factors between the self-demand of criminal law and the guide of criminal policy, between which the demand of criminal law is the inner factor while the guide of criminal policy is the outer factor. The diversity of criminal causes, the scientific tendency of the ground of punishment and the humanity tendency of punishment is the theoretical basis of the tendency of turning criminal law into criminal policy. The core of the tendency of turning criminal law into criminal policy lies in the fact that criminal law shall accept the guidance of criminal policy voluntarily. Both the legislation of criminal law and its operation are to be put into the framework of criminal policy and be held by the grand background of criminal policy. Whereas,while criminal judicature is accepting the guidance of criminal policy, the execution and implement of criminal policy shall be strictly controlled in the sphere of the present criminal law and never implement the criminal policy beyond the regulations of criminal law.