反思扩大解释与类推解释的区分——“不必严格区分说”之提倡

    Rethink the Distinction between Expanding Interpretation and Analogical Interpretation-Advocate a Theory of “no need for strict distinction”

    • 摘要: 扩大解释与类推解释的区分是中国刑法理论尚未解决的问题,二者之间存在着能否严格区分,以及如果无法严格区分该如何处理,是禁止扩大解释抑或允许类推解释的争议。反思争议,已有区分标准无力严格区分二者,扩大解释的概念本身也决定了二者确实无法严格区分;不过,既有的禁止扩大解释和允许类推解释的处理方案并不合理,前者偏废了刑法的法益保护机能,后者则无法保全刑法的人权保障机能。事实上,如果认识到禁止类推解释的理由只是在于防止法官权力的绝对不受限制,二者之间本就无需严格区分,应当提倡一种“不必严格区分说”,即不必纠结于如何明确用语可能具有的含义(实际也无法明确),只需给用语可能具有的含义划定一个边界——被解释事项不能与刑法用语之间存在明显的文义相异即可。至此,二者的区分问题迎刃而解。

       

      Abstract: The distinction between expanding interpretation and analogical interpretation is an unresolved problem in the field of Chinese criminal law. There is a controversy over whether there is a strict distinction between them, and if there isn't, how to solve the problem. The controversy arises because the existing standards cannot strictly distinguish between expanding interpretation and analogical interpretation. Actually, the concept of expanding interpretation itself also determines the fact that expanding interpretation and analogical interpretation cannot be strictly differentiated. However, it is unreasonable to prohibit expanding interpretation or allow analogical interpretation. The former limits the protection of legal interest while the latter cannot protect human rights. In fact, if it is recognized that the prohibition of analogical interpretation is just to restrict the absolute power of the judge, there is no need to distinguish between expanding interpretation and analogical interpretation strictly. We do not have to be entangled in the problem of what the possible meaning a term would have(actually it cannot be made clear). What we need to do is just to designate what meaning a term could not have. At this point, the problem of distinshing between expanding interpretation and analogical interpretation has been solved.

       

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