刑法中的明确性原则:一个比较法的研究
发布时间：2018-11-08 15:07
【摘要】：刑法明确性原则在德日具有宪法性地位,是刑法的首要原则;而在中国,刑法明确性原则还未获得宪法性地位,且在排序上处于刑法的目的与任务之后。德日的刑法理论和刑法立法均强调刑法明确性原则由罪的明确性和刑的明确性构成;而在中国,虽然理论上强调刑法明确性原则由罪的明确性和刑的明确性构成,但立法上主要强调的是罪的明确性。刑法明确性原则的具体实现途径在德日包括狭义的法律和空白刑法中需要参照的法律法规要明确,在少数情况下还要求特别授权的委任命令和判例具有明确性;而在中国,刑法明确性原则的具体实现途径除了要求狭义的法律和空白罪状中需要参照的法律法规具有明确性之外,还要求刑法司法解释具备明确性。通过比较研究发现,德日刑法明确性原则的法律地位和内部结构值得中国学习,但在具体实现途径上应当考量中国的特殊性。
[Abstract]:The principle of clarity of criminal law has constitutional status in Germany and Japan, which is the primary principle of criminal law, while in China, the principle of clarity of criminal law has not obtained constitutional status, and is in the order behind the purpose and task of criminal law. Both the theory of criminal law and the legislation of criminal law in Germany and Japan emphasize that the principle of clarity of criminal law consists of the clarity of crime and the clarity of punishment. In China, although the principle of clarity of criminal law is made up of the clarity of the crime and the definition of the punishment in theory, the clarity of the crime is mainly emphasized in the legislation. The specific way to realize the principle of clarity of criminal law is clear in Germany and Japan, including the narrow law and blank criminal law. In a few cases, it also requires that the specially authorized appointment orders and precedents be clear. In China, the specific way to realize the principle of clarity of criminal law requires not only the clarity of the narrow sense of law and the laws and regulations that need to be referred to in the blank crime, but also the clarity of the judicial interpretation of the criminal law. Through the comparative study, it is found that the legal status and internal structure of the principle of clarity of criminal law in Germany and Japan are worthy of China's study, but the particularity of China should be considered in the specific way of realization.
【作者单位】： 中央民族大学法学院;
【基金】：笔者主持的国家社科基金一般项目“环境犯罪刑法治理的早期化问题研究”(项目批准号:17BFX071)的阶段性成果之一
【分类号】：D924.1
本文编号：2318843
[Abstract]:The principle of clarity of criminal law has constitutional status in Germany and Japan, which is the primary principle of criminal law, while in China, the principle of clarity of criminal law has not obtained constitutional status, and is in the order behind the purpose and task of criminal law. Both the theory of criminal law and the legislation of criminal law in Germany and Japan emphasize that the principle of clarity of criminal law consists of the clarity of crime and the clarity of punishment. In China, although the principle of clarity of criminal law is made up of the clarity of the crime and the definition of the punishment in theory, the clarity of the crime is mainly emphasized in the legislation. The specific way to realize the principle of clarity of criminal law is clear in Germany and Japan, including the narrow law and blank criminal law. In a few cases, it also requires that the specially authorized appointment orders and precedents be clear. In China, the specific way to realize the principle of clarity of criminal law requires not only the clarity of the narrow sense of law and the laws and regulations that need to be referred to in the blank crime, but also the clarity of the judicial interpretation of the criminal law. Through the comparative study, it is found that the legal status and internal structure of the principle of clarity of criminal law in Germany and Japan are worthy of China's study, but the particularity of China should be considered in the specific way of realization.
【作者单位】： 中央民族大学法学院;
【基金】：笔者主持的国家社科基金一般项目“环境犯罪刑法治理的早期化问题研究”(项目批准号:17BFX071)的阶段性成果之一
【分类号】：D924.1
【相似文献】
相关硕士学位论文 前1条
1 刘文杰;规范的构成要件要素研究[D];河北经贸大学;2014年
，本文编号：2318843
本文链接：https://www.wllwen.com/falvlunwen/xingfalunwen/2318843.html
