刑法立法观之争的反思与出路

积极的刑法立法观与消极的刑法立法观之间的差异并不大，两者在立论依据和论证结果上有诸多的相通之处。它们的矛盾之所以表现得那么突出，表面上看是因为双方对彼此的观点存在误解、争论偏离了问题的实质以及缺乏客观的评价标准，深层原因则在于双方的刑法立场不同。化解这一难题的关键是，走出“非此即彼”的二元对立的思维模式，寻求两种刑法立法观的融合。这不仅是刑法学派之间从争论走向融合的必然要求，也是新时代背景下我国刑事法治建设的现实需要。为此，在今后的刑法立法当中，必须树立社会治理的整体性思维，重视刑法立法的实证化基础，并规范刑法立法的公众参与。 

Reflection and Outlet of the Debate on the View of Criminal Law Legislation

The differences between the positive and negative views of criminal law legislation are not as big as imagined, and they have much in common on the basis of argument and demonstration results. The reason why their contradictions are so prominent is that, on the surface, the two sides have misunderstood of each other’s viewpoints and argurments, which deviate from the essence of the issue and lack of objective evaluation standards, but the deep reason is that the two sides have different standpoints of criminal law. The key to resolve this problem is to get out of the binary opposite thinking mode of “either-or” and seek the integration of the two viewpoints of criminal law. This is not only the inevitable requirement for the integration of the criminal school from controversy, but also the realistic need for the construction of criminal rule of law in China under the background of the new era. Specifically, it is necessary to focus on the empirical basis of criminal law legislation and regulate the public participation in criminal law legislation with the guidance of holistic thinking of social governance.