刑法解释中平等原则的适用

发布时间：2019-06-09 18:26

【摘要】：平等原则作为刑法解释合宪性的判断标准和刑法合宪性解释的应有之义,不仅要求禁止进行歧视性刑法解释实现形式平等,也要求通过刑法解释积极追求实质平等。关于刑法解释中合理性区别对待是否符合宪法的平等原则,可以通过可比性、目的正当性和罪责刑相适应三个方面进行判断。从平等保护法益的角度来看,司法解释关于贪污罪与盗窃罪等侵犯财产罪的入罪数额的巨大差距,将"无能力赔偿"作为交通肇事罪定罪量刑的情节,经济犯罪中自然人主体与单位主体定罪量刑标准的差异,存在着"同行不同(定)性、同罪不同罚、罪刑不均衡"等司法不公问题,有违宪法上的平等原则。对于贪污犯罪与侵犯财产犯罪的竞合问题,应准确把握法条竞合的成立条件,以"特殊法优于普通法"为原则、"重法优于轻法"为例外,将未达到贪污罪入罪数额的贪污行为但符合相应财产犯罪之犯罪构成的作为单纯的一罪处理;刑法上"公私财产损失"的判断,应该排除与认定犯罪行为对法益侵害性无关的因素;自然人主体与单位主体应同罪同罚,适用同一定罪量刑标准。
[Abstract]:As the criterion of constitutional interpretation of criminal law and the proper meaning of constitutional interpretation of criminal law, the principle of equality requires not only the prohibition of discriminatory criminal law interpretation to achieve formal equality, but also the active pursuit of substantive equality through criminal law interpretation. The principle of equality between rational and differential treatment in the interpretation of criminal law can be judged from three aspects: comparability, legitimacy of purpose and adaptation of responsibility and punishment. From the point of view of equal protection of legal interests, the judicial interpretation of the great gap between corruption and theft and other crimes of infringement of property takes "incapacity compensation" as the circumstances of conviction and sentencing of traffic accident crime. The difference of conviction and sentencing standard between natural person subject and unit subject in economic crime, there are some problems of judicial injustice, such as "different (definite) nature of peers, different punishment of the same crime, imbalance of crime and punishment", which is contrary to the principle of equality in constitution. With regard to the concurrence between corruption crime and property infringement crime, we should accurately grasp the conditions for the establishment of the concurrence of laws and regulations, taking the principle that "special law is superior to common law" and the exception of "heavy law is superior to light law". The embezzlement behavior which does not reach the amount of corruption crime but conforms to the corresponding property crime is dealt with as a simple crime; In the judgment of "public and private property loss" in criminal law, we should exclude the factors that have nothing to do with the determination that the criminal act is harmful to the legal interest, and the natural person subject and the unit subject should be punished the same crime and apply the same conviction and sentencing standard.
【作者单位】：华东政法大学法律学院;华东政法大学;
【分类号】：D924.3

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