新形势下民意与刑事司法的博弈

民意自古以来就直接或间接地影响着法律的运行,被认为是评定司法公正和社会正义的双重标尺。在罪刑法定的刑法基调下,民意在司法运行中陷入了困境,这一切主要是源于我国所构建的封闭的刑法理论体系。鉴于司法机关传统的“独白式”刑法解释论,民意的理性引导和适当的介入便显得尤为重要。

The Balance of Public Opinion and Criminal Justice

Since ancient times, public opinion directly or indirectly influences the enforcement of the law, which is considered to be dual criterion of assessing judicial fairness and social justice. Under the basic principle of statutory crime and penalty, how to take into account the public opinion in the judicial practice is in trouble. It is the outcome of closed system of criminal theory built by Chinese scholars. In view of the shortcomings of the traditional "monologue" judicial interpretation of criminal law, rational guidance and appropriate intervention of public opinion in judicial practice will play more and more important role.