清末比附援引与罪刑法定存废之争——以《刑律草案签注》为中心

发布时间：2018-10-08 08:04

【摘要】：清末修律以防止司法擅断流弊、引进文明制度为据,废除比附援引制度,在新刑律草案中确立了罪刑法定原则,但在该草案签注前后引发了激烈争议。绝大多数签注以法不足以尽万变之人情、司法官自由裁量流弊更大为理由主张保留比附援引这一固有制度。在预备立宪这一大背景下,采纳西式罪刑法定原则、废除比附援引乃大势所趋,修律者以法律进化论为主要理论武器,紧扣立宪大局,助成此目标的初步实现。作为对争论的妥协,双方同意通过编辑判决例来规范司法官的自由裁量,但没能付诸实施。如何把握具体制度变革与整个社会转型之关系、有效规范法官之自由裁量等难题,编辑判决例、以司法方式推进立法改制的思路值得借鉴。
[Abstract]:In the end of Qing Dynasty, the law was amended to prevent judicial malpractice, to introduce civilization system, to abolish the adducing system of comparison, and to establish the principle of legally prescribed punishment for a crime in the new draft of the Criminal Law, but it caused fierce controversy before and after the endorsement of the draft. The vast majority of endorsements argue that the law is not enough to change all kinds of human feelings, and that the discretion of magistrates is even greater in favour of retaining the inherent system of comparing and invoking. Under the background of preparing the constitution, it is the trend of the times to adopt the principle of legally prescribed punishment for crimes of western style, to abolish the adducing of comparison and to invoke it. The law practitioners take the theory of legal evolution as the main theoretical weapon, closely adhere to the overall situation of constitutionalism, and help the preliminary realization of this goal. As a compromise to the dispute, the two sides agreed to regulate the discretion of magistrates by editing judgments, but failed to implement them. How to grasp the relationship between the specific system reform and the whole social transformation, how to regulate the judge's discretion effectively, how to edit the judgment cases, and how to promote the legislative reform by judicial means is worthy of reference.
【作者单位】：北京大学法学院;
【分类号】：D929;D924;K252

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