摘要
一般来说,当然解释是法条的适用方法,但在刑法中,当然解释应当作为一种解释理由。举重以明轻,是就出罪、处罚轻而言;举轻以明重,是就入罪、处罚重而言。当然解释的依据是事物的本质与法条的旨趣。由于刑法并不禁止有利于被告人的类推解释,故在适用举重以明轻的原理得出有利于被告人的解释结论时,不需要刑法的明文规定,但不能将刑法的处罚漏洞作为举重以明轻的根据。罪刑法定原则禁止不利于被告人的类推解释,故在适用举轻以明重的原理得出不利于被告人的解释结论后,还要求案件事实符合刑法规范,但是,不能将对案件事实的缩小评价当作对刑法规范的类推解释。
While viewed from the perspective of general methodology, natural interpretation is a method applicable to laws, in the criminal law it should be deemed as an interpretation reason. A principle existed in ancient China that where a judge wanted to incriminate an act that was not provided so, he might illustrate some acts punished but in nature were not so serious as the present one and where he wanted to decriminalize an act, he might illustrate some acts that were not punished as a crime but in nature by far serious than the present one. The foundation for that natural interpretation lies in the nature of things and the teleology of relevant laws. Since the criminal law does not prohibit analogy in favor of the accused, while applying the principle to decrim- inalize the accused, no express provision is required. Nevertheless, no criminal law loophole can be taken as the foundation for such natural interpretation. Since the principle of nullum crimes sine lege prohibits analogy against the accused, while applying the principle to incriminate the accused, it is required that the fact of the case should fall within the ambit of the criminal law. However, narrow evaluation of the fact of the case cannot be taken as analogy of criminal norms.
出处
《现代法学》
CSSCI
北大核心
2012年第4期3-17,共15页
Modern Law Science
关键词
当然解释
概念
性质
依据
规则
natural interpretation
concept
characteristics
foundation
principle
