刑法体系的合宪性调控——以“李斯特鸿沟”为视角
张翔刑法体系的合宪性调控——以“李斯特鸿沟”为视角
Regulating the Constitutionality of Criminal Legal System
期刊名称：《法学研究》
期刊年份：
作者：张翔
单位：中国人民大学法学院
中文关键词：罪刑法定;刑事政策;法益的宪法关联性;合宪性解释;比例原则
英文关键词：nulla poena sine lege;criminal policy;relevance of legal interests to the constitution;interpretation of the constitutionality of statute;principle of proportionality
中文摘要：
国家刑罚权的控制也是宪法学课题，有必要将刑法学理置于宪法教义学的观察之下。刑事政策与刑法体系的区隔(“李斯特鸿沟”)具有宪法意义。刑事政策并非外在于实证法，其应该以宪法为实质来源。刑事政策的宪法化有助于消除刑事政策的模糊性，缓和其对实证法体系的冲击，补强其批判立法的功能。应该构建具有宪法关联性、以基本权利为核心的法益概念，使其兼具解释和批判立法的功能。刑罚制度的政策性调整应当接受比例原则的审查。基于此，有关刑法修正案(九)中扰乱国家机关工作秩序罪的设立、严重贪污受贿犯罪可适用终身监禁等争议问题的刑法学分析，可以得到宪法教义学的补强与回应。可以说，两个学科共同承担着对刑法体系的合宪性调控任务。
英文摘要：
The control of the state power of criminal punishment is also a subject of constitutional law study. Therefore, it is necessary to put the criminal law doctrine under the scrutiny by constitutional law dogmatics. This article focuses on the relationship between criminal policies and the criminal legal system. On the one hand, the separation between the two (the Liszt Divide) is of constitutional significance:it restricts state power and protects human rights. It represents, in essence, the adherence to the rule of law in its formal sense. On the other hand, criminal policies are not necessarily outside the positive legal system; rather, they should draw their essence from the constitution. The constitutionalization of criminal policies reduces their vagueness, eases their impact on the positive legal system, and reinforces their function of criticizing the legislation. It is necessary to construct a conception of legal interest, which is related to the constitution and revolves around fundamental rights, to perform the function of interpreting and criticizing the criminal law. The adjustments of the penal system through policies should be subjected to review based on the principle of proportionality. In this way, the analysis by the criminal law doctrine of the controversies resulting from the Ninth Amendment to the Criminal Law, such as those concerning the establishment of the crime of disrupting the work order of a state organ and the application of life imprisonment to the crime of corruption, can be reinforced and responded to by the constitutional law dogmatics. Many criminal law issues, such as the interpretation of the constitutionality of criminal law, the relationship between risk criminal law and missions of the state, and the clarity of criminal law and legislators' room of discretion, need to be solve through the communication between constitutional and criminal legal doctrines. These two disciplines jointly perform the task of ensuring the constitutionality of criminal law.
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