【作者】 朱德才；

【导师】 刘宪权；

【作者基本信息】 华东政法大学 ， 刑法学， 2008， 博士

【摘要】 在刑法活动中,刑事案件定性量刑不公和刑法司法解释有违立法精神等现象时有发生。这些现象被有的学者称之为刑法的“病理现象”。对此,人们有时难以自觉,有时不以为然,有时又无从反对。但它们对刑事裁判与刑事立法带来不利的影响则不容否定。而类似于此的刑法“病理现象”,都与刑法理性紧密相关。换言之,困扰着我们的这些现象,是与刑法理性相违背、相对立的。因此,研究刑法理性对于防止和减少刑法病理现象的发生和侵袭,健全刑法健康的精神与肌体,就显得很有必要。本文立足刑法是理性法的命题,从刑法理性的构造入手,试图揭示刑法理性的构造与机理,从而为刑法立法、刑事司法和刑法研究提供新的视角与方法,分析刑法病理或非理性现象,并为保持刑法理性的品格、克服有违刑法理性提出相关建议。本文由导论、主体与结语三部分构成,主体为第一、二、三、四、五章,共16万余字。导论部分介绍了本文选择刑法理性构造题目的缘由和所采用的研究方法。选择这个题目的原因主要来自现实的感悟、历史的启迪和理论的探索三方面。不难发现,司法实践中与刑法理性不符的案例和刑法司法解释中与刑法理性不符的现象时有发生,历史上发生的令人触目惊心的违背刑法理性的事实历历在目,还有学者们对刑法作理论思考的积极倡导,使本文的选题显得必要与可行,从而也具有一定的研究价值。本文主要运用综合、比较、历史与逻辑的方法进行研究。第一章以刑法是理性法的命题为切入点,就理性、法律理性与刑法理性三个相互关联的概念进行学说上的梳理,为全文展开论述提供理论基础和分析框架。在对理性学说演变过程进行简略的历巡后,本文认为理性是对人们在认识和把握客观世界本质和事物规律的过程中形成和发展起来的,并以这种认识和把握作为根据去指导实践和超越自身的理论与实践的概括。法律理性与刑法理性是理性在法律和刑法层面的具体体现,因而既与理性有着紧密的内在联系,又都具有自已的特征;理性是基础,法律理性与刑法理性在精神气质上与理性一脉相承,前后贯通。就法律理性论,从自然法、实证主义、法社会学和实用主义法等不同视角进行考察后,本文认为法律理性至少具有四个方面的内涵与特征:合乎事物本质和发展规律是法律理性的本质;特定的价值内涵是法律理性的目的追求;内在形式与构造是法律理性的重要内容;科学的方法是法律理性实现的途径。就刑法理性而言,在考察了启蒙时期的刑法理性、刑事古典学派的刑法理性和刑事人类学派的刑法理性后,本文认为刑法理性应包括以下内容:刑法的基础观念和基本立场是刑法理性的基础;合乎社会潮流的价值蕴涵是刑法理性的追求目标;刑法内在的形式与结构是刑法理性的主要表现;刑法方法是实现刑法理性的重要途径。第二章讨论刑法基础观念的理性,这是刑法理性构造中最基础的层面。文章先从刑法基础观念的形成与发展的角度,勾勒出刑法基础观念理性的轮廓。本文认为,刑法基础观念的理性是在刑法正当性观念、刑法执行观念和刑法机能观念的变迁过程中逐步得以形成和发展起来的;刑法基础观念理性主要由刑法机能理性、范围理性与形式理性构成。在此基础上,文章对我国刑法基础观念的理性发展趋势进行了讨论,提出了更趋理性定位刑法机能、更为理性确立刑法范围和更为普遍尊崇刑法形式理性的建议。第三章讨论刑法基本原则的理性。刑法基本原则的理性既是刑法基础观念理性的原则化和具体化,又是刑法犯罪构成的理性与刑法适用方法的理性的基础,在刑法理性构造中处于承上启下的地位。文章从罪刑法定、罪刑均衡这两个刑法基本原则入手,深入剖析了其蕴涵的刑法理性内涵及其意义。本文认为罪刑法定、罪刑均衡原则的理性是由它们独特的价值理性、制度理性和实践理性构成。其中,罪刑法定的价值理性体现在以人权保障为第一位、同时兼顾社会保护的价值追求,其制度理性体现在确立理性的刑法制度、选择理性的立法技术、确定理性的刑罚结果与禁止类推制度等四方面,其实践理性则由理性地对待自由裁量、理性地进行刑法推理和理性解释刑法条文等内容组成。罪刑均衡的价值理性则凸显在追求公正和预防犯罪的价值目标,其制度理性则体现在它对罪与刑的理性的制度设计,其实践理性则由理性地评价犯罪行为、理性地量定犯罪情节和确立宣告刑罚等三个方面组成。第四章讨论刑法犯罪构成的理性。刑法犯罪构成的理性是刑法基础观念的理性和刑法基本原则的理性在刑法内在形式与结构中的承载与展现。本章主要从体系与机能这两个主要方面对犯罪构成理性切入分析。本文认为犯罪构成的体系理性,在内容上表现为具有清晰的基本概念,在形式上表现为概念之间具有相互推导的逻辑结构;犯罪构成机能理性则表现为犯罪构成理性指导刑法实践和理性凸显刑法价值两个方面。具体而言,犯罪构成机能理性通过理性地指导刑事立法和刑事司法,理性地凸显刑法的人权保障价值和理性划定犯罪圈来实现。在论述犯罪构成理性的基本构造后,分析了我国刑法犯罪构成理性的不足,并在体系理性与机能理性方面对我国犯罪构成理性提出了几点建设性意见。第五章讨论刑法适用方法理性。刑法适用方法的理性位是刑法理性构造中最后一个层面,它是刑法理性的进一步延伸与拓展,是刑法理性实践精神的栖息之所。本章以刑法适用基本上是一个三段论的过程为出发点,从刑法解释方法的理性、刑事案件形成的理性和刑法推理方法的理性三方面来构建刑法方法的理性。文章认为,刑法解释方法的理性的核心就是遵守刑法应受严格解释原则,而正确理解刑法应受严格解释原则的前提,必须正确地理解罪刑法定原则,其中的关键是克服浪漫主义与教条主义、理性对待扩张与类推,并在刑法文本的可能的词义中解释刑法。同时还注意要严守逻辑理性、理性解释条文的歧义、正确地选择解释方法。案件事实形成的理性,在于理性评价、理性整合和理性考量案件事实。也即要全面正确评价、不得重复评价案件事实;在案件事实形成过程中构成要件与案件事实相互合理整合;在分析疑案时对事实疑问坚持有利于被告原则、对法律疑问则不得适用此原则。文章认为以三段论为代表的逻辑推理是刑法推理方法理性的基础,但也存在一定的局限性,在此基础上论述了建立在推理基础刑法推理方法发展趋势的情况。文章的结语,是在前文对刑法理性构造有了一个较为清晰的轮廓与形体基础上,对全文作一个简要的总结。本文认为,从刑法理性构造中可以获得一个考察刑法的新的视角与方法,并以当前学界对许霆案的热议为例,从刑法理性构造的角度进行分析,也再次响应前文命题,刑法是理性法,并倡言刑法人做理性人。本文在构建和分析刑法理性构造中,从刑法基础观念、刑法基本原则、刑法犯罪构成和刑法方法四个层面来进行,四个层面各有自身内部的构造与机理,统一构成刑法理性的有机组成部分。其中,刑法基础观念理性是第一层面,处于刑法理性构造的最基本、最基础的地位,依次为刑法基本原则理性、刑法犯罪构成理性与刑法推理方法理性。从宏观到微观、观念到方法,体现了刑法理性构造从理念到方法一脉相承、把理论与实践融于一体的整体架构与品格。正是各个层面及其内部的理性构造,支撑起刑法理性构造的轮廓与形体,孕育着刑法理性的精神气质,蓄积了刑法理性的生命力量。需要指出的是,在本文看来,刑法理性既是需要阐释、分析的对象,同时也是指导刑法实践的一个标准,一种方法,即所谓既是“武器的批判”,也是“批判的武器”。更多还原

【Abstract】 In the activities involving criminal law, unjustified determination and measurement of penalty in criminal cases and criminal judicial interpretations in violation of the legislative intention labeled as“pathological phenomena”by some scholars appear from time to time. For these, sometimes people do not discover, or ignore, or have no due way to resist. All these similar characterized phenomena are closely related to the rationality of criminal law. In other words, these phenomena perplexing us are contrary to or in violation of the rationality of criminal law. As a result, our study on the rationality of criminal law shows great essentiality in preventing and lessening the occurrence and insurgence of these pathological phenomena and improving the mind and body of criminal law. In this article, based on the proposition that criminal law is a law of reason, and from the formation of the rationality of criminal law, the author attempts to find out the formation and mechanism of rationality of criminal law and then present us a new perspective and method for criminal legislation, criminal justice and study of criminal law to analyze pathological and non-rational phenomena of criminal law, and the author puts forward some relevant proposals on maintainance of the character and overcoming the violation of rationality of criminal law.This article consists of Introduction, Body (Chapters I, II, III, IV, V) and Conclusion, with totally more than one hundred sixty thousand words.Introduction covers the reasons why the subject on the formation of rationality of criminal law is chosen and the study methods that are employed for writing this article. The selection of this subject is resulted from the three aspects of the perception of the practice, the enlightenment of the history and exploration of the theories. It is not hard to find out that there often appear cases inconsistent with rationality of criminal law in our judicial practice and phenomena inconsistent with the rationality of interpretation methods of criminal law in criminal judicial interpretation law and shocking facts in contravention of rationality of criminal law in history are distinctly clear to us. Therefore, a proposition on the study of the criminal law by a philosophical consideration makes the subject of this article prerequisite and feasible, simultaneously, the value of the study in this article are defined. The main study methods employed herein are comprehensive method, comparative method, historical method and logical method.Chapter I It provides theoretical basis and frame of analysis for this whole article by using the proposition as point of penetration that the criminal law is rational law and conducting acodemic distinction of the relevant concepts of rationality, legal rationality and rationality of criminal law. After a brief introduction of the historical change of the schools of theories on the rationality, it is concluded that rationality is formed and developed in the process that people recognize and master the substance of the world and the law of the matter and based on such recognition and mastery of the world to guide the practice and to surpass the summary of the theories and practice. Legal rationality and rationality of criminal law are detailed manifestation of rationality of rationality in the levels of law and criminal law, and therefore, they are closely relation to rationality but also have their own characteristics. The rationality is the basis; the legal rationality and rationality of criminal law are derived from the same origin and has the same spirit. In terms of the theory of legal rationality, the different understanding and interpretations made by the law school of natural law, positivism, legal sociology and pragmatism are reviewed in this article, it is concluded that the legal rationality are at least characteristic of four aspects of connotations and features as follows: the substance of legal rationality is the law of consistence with the law of the matter and its development; the specific content of value is the pursuit of target by the legal rationality; the internal legal form and formation is the important content of the legal rationality; scientific legal methods are the means of realization of legal rationality.In terms of rationality of criminal law, after reviewing the rationality of criminal law of the enlightenment period, the classical school of criminology, and the school of criminological anthropology, it is concluded that the rationality of criminal law should cover the contents as follows: the basic concepts of criminal law and the basic viewpoints are the basis for the rationality of criminal law; the popular connotation of the values of criminal law with the then social fashions are the target in pursuit by the rationality of criminal law, the law of the internal form and structure of criminal law are the main manifestation of rationality of criminal law; methods of criminal law are the main path to realization of rationality of criminal law.Chapter II It discusses the rationality in the basic notion of criminal law which is the basic layer of structuring the rationality of criminal law. In this article, first from the perspective of the formation and development of the basic concepts of criminal law to outline the basic conceptual rationality of criminal law, it is concluded that, in the historical evolution of the notions of justification of criminal law, enforcement of criminal law and mechanism of criminal law, the rationality of mechanism of criminal law and scope rationality and form rationality mainly shape the basic notional rationality of criminal law and it grows and evolve. Furthermore, the author discusses the trend of the rationality of criminal law in our country, and puts forward more suggestions on more rationality oriented mechanism of criminal law, more rationally defined scope of criminal law and more popularly accepted form of criminal law.Chapter III It discusses the rationality of the basic principles of criminal law which is not only the priciple and embodiment of rationality in basic notion of criminal law, but also the basis of rationality of constitution of crime in criminal law and applicable method in crimimal law, positioned as a connectiong link in the formation of rationality of criminal law. Starting from the two basic principles of“Nullum Crimen Sine Lege, Wulla Poena Sine Lege”and“Balance between Crime and Punishment”and by deeply analyzing the connotation and implication of rationality of criminal law in these two principles, it is concluded that the rationality in the two principles of“Nullum Crimen Sine Lege, Wulla Poena Sine Lege”and “Balance between Crime and Punishment”are composed by their unique rationality of value, system and practice. The number one priority of human rights protection is employed in the rationality of vale of the principle of“Nullum Crimen Sine Lege, Wulla Poena Sine Lege”and at the same time and the pursuit of the value of social protection and its systematic rationality is also employed in the promotion of the system of statutory law and the request for the definition of the regulatory implications and the request for the forecasting the criminal results and the prohibition of reason by analogy and so on. And the practical rationality includes the rational treatment of free adjudication and rational interpretation of criminal clauses and rational reason of criminal law. The rationality of the value of the balance between crime and punishment shows the target of value in pursuit of just prevention of crime and its system rationality shows in the system design of the rational system of crime and punishment. Its practical rationality includes to rationally review the criminal acts, to measure the criminal circumstances and definition and declaration of crime and penalty.Chapter IV This chapter coveres the rationality of constitution of crime in criminal law which is the exemplification and expression of rationality in basic notion and priciple of criminal law in the inner form and structure of criminal law. In this article, the crime constitution rationality is analyzed through the two main aspects of system and function and it is concluded that the systematic rationality of crime constitution has clear basic concepts in contents and mutual pushing force between concepts. The functional rationality of crime constitution is to rationally direct the practice of criminal law and to expose the value of criminal law. Specifically speaking, by directing the criminal legislation and criminal judicature, the rationality of the mechanism of crime constitution shows the value of human rights protection and definition of crime commitment. After the exposition of the basic formation of the rationality of crime constitution, the demerit of the rationality of crime constitution in our country is analyzed and the author puts forward some constructive suggestions on the rationality of crime constitution in our country in the aspect of the systematic rationality and the functional rationality. Chapter 5 This chapter covered the nationality of applicable method of criminal law which is the last aspect in the formation of rationality of criminal law and the further extension and expansion of rationality of criminal law and the residence of practical spirit of rationality of criminal law. The application of criminal law is basically from the process of the three premises, structuring the rationality of criminal law from the rationality of the method of interpretation of criminal law and the rationality of the formation of criminal cases and the reasoning of criminal law. In this article the core of the rationality of the interpretation method of criminal law is subject to the principle of strict interpretation and the precondition of strict interpretation is the correct interpretation of the principle of the“Nullum Crimen Sine Lege, Wulla Poena Sine Lege”and the key is to attack romanticism and dogmatism and rationally treat expansion and reason by analogy and the possible interpretation of connotations in the versions of criminal law. At the same time, the logical rationality must be strictly observed and the ambiguous clauses must be interpreted rationally and the method of interpretation must be correctly chosen. The facts of a case form rationality and the fact of a case is balanced on the review of rationality and integration of rationality. That is to say, the review must be in all aspect and true and correct and the review of the facts of a case must not be repeated; in the formation of the fact of a case, the constitution elements and the facts of a case should be logically integrated; at the time of balance of the doubt for the fact, the principle of favorable to the defendant must be insisted and the doubt upon the law, this principle must be applied. In this article it is concluded that the logic reason as represented by the three premises is the base on the rationality of the reasoning method of criminal law and its demerits are analyzed and the connotation of the equivalent method on the basis of reasoning are discussed in this article.After the aforesaid expounds a clear outline and frame on the rationality of criminal law in the article, the conclusion makes a brief summary of the whole article. It is concluded that from the rationality of criminal law we can obtain a new perspective and method of reviewing the criminal law and take the currently hot pending“Xu Ting”case as example, to analyze the case with the method of the formation of the rationality of criminal law and echo the proposition in the above and call upon all the criminal law men to be men of rationality.This article is analyzed and formed the rationality of criminal law through the four aspects as follows: the basic concepts of criminal law, basic principles, crime constitution and method of criminal law. These four aspects have its own internal formation and mechanism and uniformly and organically make up the rationality of criminal law. The basic notional rationality of criminal law, as the first layer, is based as the most basic and elementary footing of the formation of rationality of criminal law, from macroscopically to microscopically, and from notionally and methodologically. Under the aforesaid order they are the rationality of the basic principle of criminal law, the rationality of crime constitution of criminal law, the rationality of reasoning method and they employ the basic notion of the formation of the rationality of criminal law and the frame and character of the integrate application method and the integration of the theory and the practice. It is these layers and the formation of their internal rationality that brace up the framework and outline of the rationality of criminal law and nurse the spirit of the rationality of criminal law and harbor the power of life of the rationality of criminal law.It is necessary to point out that, in the author’s point of view, the rationality of criminal law is not only the subject to be explained and analyzed, but also a standard and method to guide the practice of criminal law, namely it is“the weapon to be criticized”as well as“the weapon to criticize”.更多还原