刑罰正當根據的理論提升與實踐面向

The Theoretical Improvement and Practical Orientation of the Legitimacy of Punishment

當前對刑罰正當根據的研究，囿於報應論與預防論的討論範式，難以兼顧理論一貫與實踐導向。法確證與法恢復說借助“國家–市民社會”的二元結構，發現了刑法中行為規範的作用機理，並以此為框架展開理論建構：在國家層面，規範面向類型化的社會角色施展普遍效力，當行為規範被犯罪行為破壞時，要以刑罰（確證刑）確證行為規範的本來效力，揭示恢復規範效力的充分條件；在市民社會層面，行為規範面向形象飽滿的個體，在普遍適用的前提下於適用效果之中顯現個體差異，根據犯罪人同市民社會交往的具體狀況隨時確認規範效力的恢復情況，將確證刑調整為恢復規範效力充分且必要的刑罰（恢復刑）。法確證與法恢復說不僅在理論上邏輯自洽，還能夠為司法實踐提供具體指導。

The current researches on the legitimacy of punishment have been confined by the discussing paradigm between the Theory of Retribution and the Theory of Prevention, which is difficult to take both logical unity and practice into consideration. With the help of the “State-Civil Society”, the Theory of Norm-Confirmation and Norm-Restoration has found the action mechanism of norms in the criminal law and carried out the theoretical construction: At the “State” level, the norm exerts universal force on the typed social roles. When the norm violated by the crime, the original normative force should be confirmed by penalty (Confirmatory Penalty), while revealing the sufficient condition for restoring the normative force. At the “Civil Society” level, the norm is oriented to precisely individuals and takes individual differences into consideration while being applied under the universal force. When the norm violated by the crime, it is necessary to confirm the restoration level of the normative force at any time according to the specific communicative situation between the criminal and Civil Society. And then adjust the Confirmatory Penalty to a penalty that is sufficient and also necessary to restore the normative force (Restorative Penalty).The Theory of Norm-Confirmation and Norm-Recovery is logically self-appropriate in theory, and it can also provide specific guidance for judicial practice. What’s more, it has enlightening significance for the linkage between the theory of punishment and the theory of crime, and the reform of the system of punishment.