【作者】 曾琳；

【导师】 薛进展；

【作者基本信息】 华东政法学院 ， 刑法， 2005， 硕士

【摘要】 随着我国刑事立法技术的不断发展和完善,在当前的刑事法治建设中,立法的推进与贡献已是相当有限,突破“瓶颈”的关键是要加强司法。刑法司法解释作为联系刑法规范原则性与司法实务可操作性的纽带,在刑法司法过程中起着重要的作用。其核心内容――刑法司法解释权的配置,更是成为了刑法司法解释合法性与合理性的关键所在。因此,如何配置刑法司法解释权一直是刑法理论界和司法实务界密切关注的问题。九十年代初围绕着最高人民法院、最高人民检察院是否拥有刑法司法解释权及如何划分权限的问题掀起了第一次探讨刑法司法解释权配置的高潮;随着新刑法和刑事诉讼法的实施,刑法司法解释权配置的问题再次凸现,引发了第二次讨论高潮;在二○○三年全国刑法学年会上,刑法解释第三次成为讨论的焦点,学者们对我国刑法司法解释权配置模式提出了许多中肯的意见和有建设性、前瞻性的建议。那么,究竟什么才是既合法又合理的刑法司法解释权配置?我国刑法司法解释权配置模式的现状又是如何呢?为什么短短十余年刑法司法解释权配置作为热点问题被讨论了三次却又久久得不到解决呢?带着这些疑问,本文展开了对刑法司法解释权配置模式构建的探索,同时,这个探索过程也是对刑法司法解释权及其内容如何进行剥离和分配的过程。为了更科学、严谨地对此问题展开讨论,本文将刑法司法解释权配置严格界定为在刑法司法过程中,将刑事实体法而非刑事程序法的解释权授予给哪些主体以及将何种解释权授予给何种主体的配置问题。在文章结构上,本文分为四个部分:第一部分是对我国现行刑法司法解释权配置模式及其存在基础的介绍;第二部分对该更多还原

【Abstract】 With the development and improvement of China’s legislative techniques in Criminal law, there is less room for the promotion and attribution effect of legislature in current construction of criminal law system. To enhance the judicial practice is the key to overcome this “bottleneck”. As the link between the rigidity of criminal law and operability of judicial practice, the judicial interpretation on criminal law is of great importance in the process of judicial practice. Its core, the power allocation of criminal justice, is more of the key point in the legality and rationality of judicial interpretation on criminal law. Therefore, how to allocate the power over judicial interpretation on criminal law has been a very concerned issue both in the academic circle and judicial practicing circle of criminal law. In the beginning of 1990’s, it saw a first climax of argumentation on power allocation of judicial interpretation on criminal law focusing on the issue whether the Supreme People’s Court and Supreme People’s Procuratorate have the power of judicial interpretation on criminal law and how to allocate the power. As the implementation of newly amended Criminal Code and Criminal Procedural Code, this issue outstands again and raises the second climax of argumentation. On the Annual Conference of National Criminal Law Association in 2003, the issue of interpretation criminal law became the focus of argumentation for its third time. Scholars on the Conference offered many relevant advice and lots of constructive and prospective proposals on China’s power allocation of judicial interpretation on criminal law. Then, what is the lawful and rational power allocation of judicial interpretation on criminal law. What is the current status of China’s power allocation of judicial interpretation on criminal law? Why it has been widely argued as a hot topic for thrice in only about one decade and still can not be settled? With these questions, this article explores how to establish the mode of power allocation of judicial interpretation on criminal law, while the process of exploration itself served as the process to divide and allocate the interpretation power of criminal power and its content. To discuss this issue more scientifically and precisely, the article strictly defines the power allocation of judicial interpretation on criminal law in the process of criminal justice, and focuses on which authorities shall be endowed the interpretation power of criminal substantial law not criminal procedural law and how to allocate different power to different authority. As to the structure of this article, it is divided into four parts. The first part introduces the China’s current mode of power allocation of judicial interpretation on criminal law and its basis; the second part makes some criticism on this mode and pinpoints its underlying problems; the third part outlines the foundation of restructuring China’s power allocation of judicial interpretation on criminal law; and the last part, based on this foundation, proposes a mode where the Supreme People’s Court shall have the power over normative interpretation of criminal law and a judge shall have the power over the applicable interpretation of criminal law. To the research and argumentation approaches, it considers the mode of power allocation of judicial interpretation on criminal law as a whole building. The firmness of the building mainly depends on its foundation. Therefore, to criticize the current mode of power allocation, it is necessary to analyze its foundation and find out its defects. Similarly, to restructure the mode of power allocation, it must firm up the foundation first and then establish a new building on this foundation. Certainly, this new building does not totally deny the old one, but takes in those strong points of old one and combines modern building technique to make it conform to modern building concept (rule of law in judicial practice). Furthermore, we shall clearly realize that the road to restructure the mode of power allocation of judicial interpretation on criminal law will be quite hard and impossible to be accomplished sonly, but the difficulties can not resist us from development. I wish this article can provide a new idea for the legalization, rationalization and scientificity of China’s judicial interpretation of criminal law, and contribute something in the process of rule of law in judicial practice, which is the dynamic force for me to write this article.更多还原