析中国法官释法权的缺位及其弊端

在中国享有刑法司法解释权的主体只有最高人民法院与最高人民检察院,法官释法权并不被认可。法官的司法解释地位之所以被忽略,是因为在立法上没有认可法官的释法权;而在司法制度上,法官独立审判机制的缺失和法院系统内部案件请示制度以及错案追究制度的存在,都直接导致法官并不愿意行使刑法解释权能。法官释法权的缺位不仅有碍罪刑法定原则的实现、不利于法官司法能动性的发挥,而且直接不利于个案公正的实现、影响刑法理论的发展、动摇公众对刑法的信仰。

On the Vacancy of Judgers' Power of Interpreting Law in China and Its Defects

In China,it is the Supreme People′s Court and the Supreme People′s Procuratorate that have the power of interpretation of criminal and judicial laws,not the judgers.The reason why the judgers have no place in interpreting laws is that they are not legislatively empowered to do that;but in terms of judicial systems,the mechanism that judgers cannot exercise judicial authority independently,the system of referring some restricted cases to the superior,and the system of investigation for one′s misjudged cases make the judgers unwilling to exercise this power of interpretation of criminal law.However,the vacancy of the judgers′ power in this regard not only hinders the realization of the principle of legality and the implementation of the judgers′ motivation,but also does harm to the justice of cases,the development of the theory of criminal law and people′s confidence in the criminal law.