刑事诉讼法上的类推解释
杨文革刑事诉讼法上的类推解释
Analogical Interpretation in Criminal Procedure
期刊名称：《法学研究》
期刊年份：
作者：杨文革
单位：南开大学法学院
中文关键词：类推解释;法律漏洞;程序法定原则;法律保留原则
英文关键词：analogical interpretation;legal loophole;principle of procedural legality;principle of legal reservation
中文摘要：
类推解释在刑法和刑事诉讼法上具有不同的形式和意义。刑法基于罪刑法定原则的要求，原则上禁止类推解释，尤其是相似条文之间的类推解释；只有在有利于被告的前提下，才允许事实比较意义上的类推解释。但在刑事诉讼法上，即使承认程序法定原则，也只是禁止扩张国家权力的类推解释，而不应禁止保障国民权利的类推解释。
英文摘要：
As a judicial instrument to fill loopholes up, analogical interpretation takes different forms in the criminal law and the criminal procedure law and carries different legal implications. In the criminal law, the principle of legality generally denies the application of analogical interpretation, especially the analogy between similar legal provisions. However, absolute prohibition of analogical interpretation in the criminal law is undesirable. On the one hand, it is difficult to define the boundary between analogical interpretation and extensive interpretation, while the latter is allowed in the criminal law. On the other hand, the criminal law also allows the analogical interpretation in favor of the defendant where facts are proved similar. In contrast, the principle of legality imposes no general prohibition against analogical interpretation in the criminal procedure. Given that the power of the state and civil rights are originated from different sources, the principle of legality prohibits analogical interpretation only when such interpretation expands the power of the state, and does not prohibit its application to protect civil rights. However, in the context of Chinese criminal procedure, because the principle of legal reservation is not established, the power of the state often takes the form of analogical interpretation which seriously breaches the legal rights and interests of the parties. In fact, the cases are rare where analogical interpretation is applied in the criminal procedure to protect the rights of the parties. Further research on the analogical interpretation in the criminal procedure should be strengthened, so as to established the principle of legal reservation, set up the judicial review system, prohibit the analogical interpretation that expands the power of the state, and pave the way for the analogical interpretation to safeguard litigants'rights and interests.
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