刑法客观解释论研究
发布时间：2018-10-30 09:30
【摘要】：正如有的学者指出,狭义的刑法学即指刑法解释学,刑法适用的主要任务就是反复解释刑法条文,目光不断徘徊于刑法条文和事实之间。刑法条文具有概括性、抽象性,因此在适用刑法时,不可避免地要进行解释。此外,法律总是具有滞后性,在刑法制定之后,总是会出现一些新情况,为了能够及时处理新情况,就需要对刑法进行妥当的解释。因此,刑法解释是联系刑法规范和事实之问的桥梁,是刑法得以真正实施的重要途径。 由于刑法解释如此重要,关于刑法解释的理论一直备受重视。刑法解释的相关理论之间也存在不少争议。在历史上,主观解释论曾在一定时间内具有很大的影响力,但是随着刑法理论的发展,如今理论上多数人支持客观解释论,但仍有一些学者尤其是多数司法实务人员仍坚持主观解释论。然而即使在多数人支持客观解释论的情况下,某些问题也缺乏深入探讨。如客观解释论的解释方法、解释的边界、客观解释论的合理性检验标准等,这些问题不讨论清楚,对于客观解释论的实效将产生很大的影响,甚至将偏离客观解释论的初衷。 本论文不仅研究刑法解释的基本立场,在分析比较各种理论优缺点的基础上得出支持客观解释论的结论,并对于客观解释论的理论深化提出一些看法,为如何进一步完善客观解释论的理论、提高客观解释论的可操作性、实现客观解释论的最终目的提出一些见解,并为如何在罪刑法定的前提下解释刑法,缩小刑法规范与现实之间的差距,实现刑事判决的合法性与合理性作出一些建议。
[Abstract]:Just as some scholars have pointed out, the narrow sense of criminal law is the hermeneutics of criminal law. The main task of criminal law application is to interpret the provisions of criminal law repeatedly. The provisions of criminal law are general and abstract, so it is inevitable to interpret them when applying criminal law. In addition, the law is always lagging behind, after the formulation of the criminal law, there will always be some new situation, in order to deal with the new situation in time, it is necessary to properly interpret the criminal law. Therefore, the interpretation of criminal law is a bridge connecting the norms of criminal law and the question of facts, and is an important way for the real implementation of criminal law. As the interpretation of criminal law is so important, the theory of interpretation of criminal law has been attached great importance. There are also many controversies between the relevant theories of criminal law interpretation. Historically, the subjective interpretation theory has had a great influence for a certain period of time, but with the development of the criminal law theory, most people in theory now support the objective interpretation theory. However, some scholars, especially most judicial practitioners, still insist on subjective interpretation. However, even when most people support objective interpretation, some problems are not explored in depth. Such as the interpretation method of objective interpretation theory, the boundary of interpretation, the rationality test standard of objective explanation theory and so on, these problems are not discussed clearly, which will have a great influence on the actual effect of objective explanation theory, and even deviate from the original intention of objective explanation theory. This thesis not only studies the basic stand of criminal law interpretation, but also draws the conclusion of supporting objective interpretation theory on the basis of analyzing and comparing the advantages and disadvantages of various theories, and puts forward some views on deepening the theory of objective interpretation theory. In order to further improve the theory of objective interpretation, improve the operability of objective interpretation, realize the ultimate purpose of objective interpretation, and how to interpret criminal law under the premise of legally prescribed punishment for a crime, Some suggestions are made to narrow the gap between the norms of criminal law and reality and to realize the legality and rationality of criminal judgment.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
本文编号：2299617
[Abstract]:Just as some scholars have pointed out, the narrow sense of criminal law is the hermeneutics of criminal law. The main task of criminal law application is to interpret the provisions of criminal law repeatedly. The provisions of criminal law are general and abstract, so it is inevitable to interpret them when applying criminal law. In addition, the law is always lagging behind, after the formulation of the criminal law, there will always be some new situation, in order to deal with the new situation in time, it is necessary to properly interpret the criminal law. Therefore, the interpretation of criminal law is a bridge connecting the norms of criminal law and the question of facts, and is an important way for the real implementation of criminal law. As the interpretation of criminal law is so important, the theory of interpretation of criminal law has been attached great importance. There are also many controversies between the relevant theories of criminal law interpretation. Historically, the subjective interpretation theory has had a great influence for a certain period of time, but with the development of the criminal law theory, most people in theory now support the objective interpretation theory. However, some scholars, especially most judicial practitioners, still insist on subjective interpretation. However, even when most people support objective interpretation, some problems are not explored in depth. Such as the interpretation method of objective interpretation theory, the boundary of interpretation, the rationality test standard of objective explanation theory and so on, these problems are not discussed clearly, which will have a great influence on the actual effect of objective explanation theory, and even deviate from the original intention of objective explanation theory. This thesis not only studies the basic stand of criminal law interpretation, but also draws the conclusion of supporting objective interpretation theory on the basis of analyzing and comparing the advantages and disadvantages of various theories, and puts forward some views on deepening the theory of objective interpretation theory. In order to further improve the theory of objective interpretation, improve the operability of objective interpretation, realize the ultimate purpose of objective interpretation, and how to interpret criminal law under the premise of legally prescribed punishment for a crime, Some suggestions are made to narrow the gap between the norms of criminal law and reality and to realize the legality and rationality of criminal judgment.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
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