刑法學研究的五個關係

Five Relationships Regarding the Criminal Law Study

我國的刑法學難以適應社會發展的迫切需要，當下特別需要處理好以下幾個關係：第一，強勢理論與弱勢理論。刑法學的研究應當從弱勢理論著手，而不必以維護強勢理論為目的。第二，真問題與假問題。刑法學中的真問題，應當是前提真實與客觀存在，具有學術價值與實踐意義，並且能夠尋找到答案的問題；刑法學應當研究真問題，切忌將假問題當作真問題。第三，前見與偏見。刑法解釋只能從前見出發，並且隨時准備對前見進行修正，而且必須消除自己的偏見。第四，價值判斷與邏輯結論。任何解釋者都不能將自己的價值判斷當作邏輯結論，也不應隨其所好地接受任何價值判斷。第五，學術批判與自我反省。刑法學研究主要是一種批判性思考，批判性思考並不只是批判他人的觀點，還應包括對自己觀點的反省。

Our criminal law theory is difficult to adapt to the urgent need of social development. Under current situation, the following relationships are specially needed to be balanced. First of all, regarding the relationship between strong theory and weak theory, the criminal law study shall focus on the weak theory, while the maintenance of strong theory shall not be the aim of theory study. In the second place, regarding the relationship between true questions and false questions, true question in the criminal law shall have its true premise and objective existence, have its research value and practice meaning, and can be answered through theory study. The criminal law study shall focus on the research of true questions, avoiding by all means taking false questions as true questions. In the third place, regarding the relationship between foresight and prejudice, the criminal interpretation can only take foresight as the starting point, verifying and a-mending the foresight during the process of interpretation, while the interpreter' s prejudice must be excluded from the interpretation. In the fourth place, regarding relationship between value judgment and logic conclusion, any interpreter cannot take for granted his own value judgment as logic conclusion, and any interpreter cannot accept any value judgment based on his personal preference. Finally, regarding the relationship between academic criticism and self-reflection, the criminal law study shall mainly be a critical thinking. As to the critical thinking, it is not only referring to the critique of other scholars' opinions, a self-reflection of the interpreter' s own opinion is also included.