试论刑法中的扩张解释
发布时间：2018-11-23 19:08
【摘要】：刑法解释是刑法学中一个永恒的话题,也是刑法学中的一个难题。而扩张解释作为刑法解释的一种方法,更是刑法解释的一个难题。如何区分扩张解释与类推解释?如何把握扩张解释的限度?这些问题直接关系到刑法的机能能否实现。对这一问题的研究是具有重大的理论和实践意义的。基于对刑法解释的思考,本文从刑法的基本理论出发,试图对刑法扩张解释作一个比较深入的研究。 本文主要由三部分构成。第一部分,刑法扩张解释概述。主要阐述了刑法扩张解释的根据、分类、原则、合理性等问题。这些都是涉及到刑法解释的基本问题,是任何研究刑法解释的人都不可避免地问题。对这些问题的探讨,使我们对扩张解释有一个宏观的把握；第二部分,刑法扩张解释与罪行法定原则。这一部分主要论证了遵循罪刑法定原则是进行扩张解释的前提,并对扩张解释与类推解释的界限作了一定的区分；第三部分,刑法扩张解释的限度。在中外刑法学者对扩张解释的研究基础之上,笔者提出了自己的观点。“综合标准说”的提出,亦是本文最重要的价值所在。 本文的贡献就在于从刑法的基本理论出发,提出了“综合标准说”,以“综合标准说”作为扩张解释的限度标准。凡是符合此标准的解释就是扩张解释,反之,则不属于扩张解释,可能是类推解释。希望这种标准能对刑法解释者提供一定的参考。
[Abstract]:Criminal law interpretation is an eternal topic in criminal law, and also a difficult problem in criminal law. As a method of criminal law interpretation, expansion interpretation is a difficult problem in criminal law interpretation. How to distinguish expansion interpretation from analogy interpretation? How to grasp the limit of expansion explanation? These problems are directly related to whether the function of criminal law can be realized. The study of this problem is of great theoretical and practical significance. Based on the thinking of the interpretation of criminal law, this paper tries to make a deeper study on the expansion of criminal law from the basic theory of criminal law. This paper is mainly composed of three parts. The first part is an overview of the expansion of criminal law. This paper mainly expounds the basis, classification, principle and rationality of the expansion interpretation of criminal law. These are the basic problems related to the interpretation of criminal law, which are inevitable to anyone who studies the interpretation of criminal law. The discussion of these problems makes us have a macroscopic grasp of the interpretation of expansion. The second part is the interpretation of expansion of criminal law and the principle of criminal law. This part mainly demonstrates that following the principle of legality is the premise of expanding interpretation, and makes a certain distinction between expansion interpretation and analogy interpretation; the third part, the limit of criminal law expansion interpretation. On the basis of the Chinese and foreign criminal law scholars' research on the expansion interpretation, the author puts forward his own point of view. It is also the most important value of this paper to put forward the comprehensive standard theory. From the basic theory of criminal law, the contribution of this paper is to put forward the "comprehensive standard theory", taking "comprehensive standard theory" as the limit standard of expansion interpretation. The interpretation that meets this criterion is the expansion interpretation, otherwise, it is not the expansion interpretation, may be the analogy explanation. Hope this kind of standard can provide certain reference to criminal law interpreter.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
，
本文编号：2352445
[Abstract]:Criminal law interpretation is an eternal topic in criminal law, and also a difficult problem in criminal law. As a method of criminal law interpretation, expansion interpretation is a difficult problem in criminal law interpretation. How to distinguish expansion interpretation from analogy interpretation? How to grasp the limit of expansion explanation? These problems are directly related to whether the function of criminal law can be realized. The study of this problem is of great theoretical and practical significance. Based on the thinking of the interpretation of criminal law, this paper tries to make a deeper study on the expansion of criminal law from the basic theory of criminal law. This paper is mainly composed of three parts. The first part is an overview of the expansion of criminal law. This paper mainly expounds the basis, classification, principle and rationality of the expansion interpretation of criminal law. These are the basic problems related to the interpretation of criminal law, which are inevitable to anyone who studies the interpretation of criminal law. The discussion of these problems makes us have a macroscopic grasp of the interpretation of expansion. The second part is the interpretation of expansion of criminal law and the principle of criminal law. This part mainly demonstrates that following the principle of legality is the premise of expanding interpretation, and makes a certain distinction between expansion interpretation and analogy interpretation; the third part, the limit of criminal law expansion interpretation. On the basis of the Chinese and foreign criminal law scholars' research on the expansion interpretation, the author puts forward his own point of view. It is also the most important value of this paper to put forward the comprehensive standard theory. From the basic theory of criminal law, the contribution of this paper is to put forward the "comprehensive standard theory", taking "comprehensive standard theory" as the limit standard of expansion interpretation. The interpretation that meets this criterion is the expansion interpretation, otherwise, it is not the expansion interpretation, may be the analogy explanation. Hope this kind of standard can provide certain reference to criminal law interpreter.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
，
本文编号：2352445
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