摘要
严格依法定罪量刑是中国传统刑事司法的基点,也是传统中国罪刑法定的基本立场。但由于法律社会本位的影响,传统中国还产生了类推、比附和运用情理等制度和方法,以平衡定罪量刑时的"法律之穷"。这些平衡方法的运用虽然导致了罪刑擅断现象的出现,但不足以否定传统中国罪刑法定的基本立场。在一定意义上来说,中国传统刑事司法正因为基本制度与非基本制度的交织运用,才呈现出复杂的面相。而要准确地理解传统刑事司法,厘清基本制度和非基本制度及其相互关联是其必由之路。
To mete out punishment in strict accordance with the law is both the basic principle and stance assumed by Chinese traditional criminal justice. However, due to the fact that the purpose of the law is to maintain social benefits, the methods or mechanisms of analogy, comparison and appealing to emotion and reason were also used to balance the inadequacy of law in ancient China. Though the use of these means as supplements to the law would lead to some arbitrary or even unfair decisions, the basic stance of ＂no crime without law＂ assumed by Chinese traditional criminal justice cannot be denied. In a certain sense, it was the interaction between the basic system and its supplementary system that made Chinese traditional criminal justice rich in meaning and significance. The only approach to due understanding of the traditional Chinese criminal justice is to develop a clear picture of the basic and supplementary systems and the interaction between them.
出处
《法治现代化研究》
2018年第1期156-167,共12页
Law and Modernization
关键词
罪刑法定
类推
比附
情理
no crime without law
analogy
comparison
emotion and reason
