善待刑法学通说与刑法解释学:一种刑法信仰与权威的生成之道

理论刑法学和应用刑法学是刑法学的两大支柱,而刑法学通说和刑法解释学分别是前二者的灵魂,但目前的刑事法治生态环境呈现恶化趋势。刑法学通说必须同时具备长期性、共识性、验证性、实用性和动态性,应妥善处理刑法学通说与学术创新之间的紧张关系,以学术创新推进刑法学通说的历史进化。刑法解释学是最基础和常见的具有独立品格的学科,不能一味地批评法条主义,作为刑法实践的代言人,应以刑法学体系为疆域,重新树立罪责刑关系和罪责刑均衡为对象和目标的刑法解释新范式。刑法是理性与实践的结合体,刑法学通说和刑法解释学是刑法信仰和生成的根据与基础,二者不可偏废其一。

Pay Mercy to the General Criminal Theory and Criminal Hermeneutics： a Generating Approach to Criminal Faith and Authority

Theoretic criminal law and practical criminal law are the two pillars of criminal law,while the general criminal theory and criminal hermeneutics are the soul of the former two.However,the current criminal ecological environment seems deteriorating.The general criminal theory must have acquired the characteristics of long-term,consensus,confirmatory,practical and dynamic,it is important to properly deal with the tensions between the general criminal theory and academic innovation,which is the very ideal way to promote the historical evolution of general criminal theory.Criminal hermeneutics is the most fundamental and common independent discipline,legalism has been over criticized for a long time,the object and aim of criminal interpretation should be reestablished by criminal law system so as to reach internal consistency,effective communication between the relationship among crime,criminal responsibility and penalty and implementation of balance among crime,criminal responsibility and penalty.Criminal law is a combination of rational and practical aspects,while the general criminal theory and criminal hermeneutics are a generating approach to criminal faith and authority.