摘要
当前我国刑法学中的形式解释论与实质解释论之争不是事实论与价值论之争,而是发生在价值论内部,涉及如何适用价值判断的问题。检视这场争论可以发现,双方不仅在基本范畴的指涉与运用上较为混乱,还存在误读、曲解甚至虚构对方观点的现象,并且双方所宣称的立场往往与其实际做法不尽一致;此外,实质论者在论证逻辑上也有值得商榷之处。双方存在若干重要分歧,缘起于对刑事法治基本任务的不同定位。我国刑法学中的形式解释论与实质解释论之争,在性质上具有不同于德日相关争论之处。
The debate, between the theory of formalistic interpretation and the theory of substantive interpretation in the Chinese academic circle of criminal law, is concerned not with such a dispute be- tween fact and value, but with the question of how to apply value judgment in the interpretation of criminal law. In this debate, for the two concerning parties, there are some confusion in the use of basic concepts, some mistakes in the understanding of the opinions of their opponent and a wide di- vergence between what they have claimed in the words and what they have actually done in some parti- cular cases. In addition, in the argument of the theory of substantive interpretation, there is still an obvious flaw in its logic. The controversies appear in this debate include the following eight aspects, that is, the relation- ship between a formalistic judgment and a substantive one in the interpretation of Tatbestand, the question of what is a so-called loophole in the criminal law and how to fill it, the explanation of the principle of legality and the attitude to an expansive interpretation against the defendant, the nature of the criminal norm and the understanding of the function of Tatbestand, the inclination to the theory of subjective interpretation or to that of objective interpretation, the preference for literal interpretation or for teleological interpretation, the status of ＂hard case＂ in judicial practice and the importance of legal interpretation, and the attitude to the discretion of the interpreters. Such controversies derive from the conflicting ideas as to the basic task of rule of law in the criminal field of China. In its na- ture, such a debate in China is greatly different from the one in the criminal law theory of Germany and Japan.
出处
《法学研究》
CSSCI
北大核心
2013年第3期122-139,共18页
Chinese Journal of Law
基金
笔者主持的国家社科基金青年项目"刑事政策与刑法理论的建构研究"(项目批准号为11CFX061)的阶段性成果
关键词
刑法解释
形式解释论
实质解释论
学派之争
罪刑法定
interpretation of criminal law
formalistic interpretation
substantive interpretation
debate between legal schools
principle of legality
