以刑释罪之定性与适用问题研究

Study on the Qualitativeness and Application of the Interpretation of a Crime by Punishment

摘要: 罪刑关系问题一直是学界争论的话题，越来越多的学者对传统的由罪及刑的单一制约关系提出质疑。学界也产生了诸多学说，以刑释罪理论是新型罪刑关系中最为保守的学说。以刑释罪理论指的是在刑法教义学的框架之内，立足于量刑妥当性而去辅助司法者利用经典的解释方法将法律适用于案件事实中。以刑释罪理论不同于后果主义，应当有所区分。在明确其功能性质与触发机制之后，对以刑释罪理论的适用对象应扩大到所有案件，每一个案件都应当遵循以刑释罪的司法逻辑。最后，针对以刑释罪理论适用上的诸多问题，对其的适用也应当有诸多限制，包括自我控制和外部程序控制两大类，以避免工具性的滥用，才能实现以刑释罪理论的真正价值。

Abstract: The relationship between crime and punishment has always been a controversial topic in aca-demic circles. More and more scholars have questioned the traditional single restriction relationship between crime and punishment. The academic circle has produced many theories, the theory of the interpretation of a crime by punishment is the most conservative theory in the new relationship between crime and punishment. The theory of the interpretation of a crime by punishment refers to the application of the law to the facts of the case by the classical interpretation method, which is based on the appropriateness of sentencing and auxiliary justice in the framework of criminal law doctrine. The theory of the interpretation of a crime by punishment is different from consequentialism and should be distinguished. After clarifying its functional nature and triggering mechanism, the applicable object of the theory should be expanded to all cases, and each case should follow the judicial logic of the theory. Finally, in view of the many problems in the application of the theory, there should be many restrictions on its application, including the two categories of self-control and external procedure control, in order to avoid the abuse of tools, in order to realize the real value of the theory of the interpretation of a crime by punishment.