刑事案件社会结构与罪刑法定原则关系初探

刑事案件社会结构对司法场域运作过程存在影响,这种社会异质性因素对司法裁判的作用与罪刑法定原则的要求存在紧张关系。以罪刑法定原则是不可撼动的

Study on the Relationship between Social Structure of a Criminal Case and the Principle of Legality

The social structure of a criminal case has essential effects on the process of the criminal justice, but these effects may conflict with the principle of legality. The ideas which deny the social structure are not reasonable, which consider the legality principle as the "Golden Rule". By contrast, it is wise to acknowledge the limitation of the principle of legality and construct a measure that the social structure could set boundaries for the principle. The measure is the basis for the judiciary use of the legality principle, which is approved by ECtHR recently.