刑法“从旧兼从轻”原则基本问题论纲

“从旧兼从轻”原则是刑法基本原则，然而在司法实践当中却存在诸多混乱、模糊之处，这其中既有罪刑法定原则司法化困境等理论层面的原因，也有刑法规范修订频繁等现实层面的原因。要突破困境，就必须明确刑法规范溯及力存在立法层面、司法层面、理论层面三个向度，并根据不同对象的特殊情况，对溯及力问题进行分层。通过“禁止溯及既往的形式”和“禁止溯及既往的效果”的划分，对“从旧兼从轻”原则进行工具化改造，以期实现在坚守“从旧兼从轻”基本原理的同时，赋予司法机关足够的解释余地；在直面复杂对象带来矛盾的同时，提供解决问题的一般性方向；在建构抽象理论工具的同时，回应司法实践现实需要的综合目标。

Basic Issues of Non-retroactivity Principle in Criminal Law

Non-retroactivity is a basic principle of Criminal Law, which at the same time includes ambiguity and disorder in the criminal justice. Reasons that result in those difficulties lie in the plight of judicialization of the principle of legality on the theoretical level and frequently amendment of Criminal Law on the practical level. To break through the plight, it is quite necessary to distinguish legislative, judicial and theoretical direction of retroactivity, and according to which proceed hierarchy upon retroactivity issue. Through differentiating prohibition of respective form from prohibition of respective effect, we can finish implementing transformation of non-retroactivity principle, in order to achieve complicated goals which can be described as sticking to the ground rationale, as well as applying enough flexibility to the judiciary authorities; facing the difficulties resulted from the complicated objects, as well as offering general solution to the problem; constructing the abstract theoretical tool, as well as reacting practical needs of the judicial office.