刑法概念的重新界定及展開

The Nature of Criminal Law and Its Definition

刑法學體系本來應是刑法概念的邏輯展開，刑法的概念本來應是刑法理論研究的邏輯起點，但中外刑法學界對刑法的概念都不太重視，研究都不夠深入，導致刑法理論出現諸多困惑，刑法實踐出現諸多分歧。通過比較研究，刑法實質上就是國家以刑罰為手段，用以調整全體公民人權與公民個人人權之關係的刑事法律規範的總和。對刑法的概念作上述解讀，不但可以從本質上回答什麼樣的行為可以納入刑法調整的範圍，為什麼這些行為不由其他部門法調整而由刑法調整等問題，劃清刑法與其他法律部門的實質邊界，證明刑法的獨立性，而且可以使犯罪的本質、刑罰的本質、刑罰的目的、刑罰的根據、刑法的任務等歷史難題迎刃而解，使刑法學基本理論形成一個本質上相同、邏輯上相通、結構上相連的一以貫之的科學體系。

The science of criminal law is supposed to be the extension of criminal law, while the concept of criminal law is supposed to be the logical starting point for the theoretical research of criminal law. However, academics in China and abroad don't place much emphasis upon the concept of criminal law and few in-depth research has been done about it, which lead to much confusions about the theory of criminal law and much divergence in practice. Through comparative research, criminal law, in essence, is the combination of all criminal regulations used to adjust the relationship between the entire human rights of all citizens and the individual human rights through the criminal penalty imposed by state institutions. With the clarification of the criminal law concept, it is clear that certain behaviors fall under the umbrella of criminal law, while others cannot. The substantive boundary between criminal law and other department of laws is clear cut to prove the independence of criminal law. In addition, such long-lasing debates as the essence of crime, the nature and purpose of criminal penalty, the grounds for criminal penalty and the mission of criminal law can be solved to make the fundamental theory of criminal law a scientific system with identical nature, sound logic and consistent structure.