【作者】 鲁晨生；

【导师】 刘远；

【作者基本信息】 山东大学 ， 刑法学， 2007， 硕士

【摘要】 以适用范围为标准，可以将刑法分为普通刑法和特别刑法。普通刑法是指刑法典，它具有普遍的适用效力，而特别刑法包括单行刑法和附属刑法，在我国，前者是指全国人大常委会针对特定的事、特定的人、特定的地区或者特定的时间颁布的刑事法律，多通过“决定”、“补充规定”的形式出现，后者则是非刑事法律中的刑事责任条款。稳定性是刑法典的特征之一，这种特性使刑法典要为引导公民的行为提供明确的规范标准，但是，这也造成了刑法典的滞后性。它无法实现对社会的发展而出现的新的社会关系的调整，并且刑法典的内容也可能渐渐不合时宜，造成了刑法典与社会的脱节。在这种情况下，特别刑法作为对刑法典的补充形式出现了，它可以针对社会的变化适时地对刑法典做出相应的调整，弥补刑法典的缺陷，最大程度的保证刑法典与社会生活的吻合，可以说这是实践的要求，也是刑事法治完善的要求。特别刑法的存在使我国刑事法律体系呈现出以刑法典为主体，特别刑法为补充的总体结构。特别刑法在刑事法律体系中发挥了重要的作用，这不仅体现在对刑法典分则个罪构成要件的修改上，而且涉及设置新罪、创制新的刑罚等多方面。正是因为特别刑法具有如此重要的价值才要求我们必须重视特别刑法存在的意义。但是，目前我国特别刑法却存在诸多问题：单行刑法主要存在立法随意性大、与刑法典协调性差、重刑化趋势明显等问题；而附属刑法由于大都采用概括式和照应式的立法模式，没有规定详细的罪状和配置相应的法定刑，从而产生内容空洞、罪刑规定混乱等弊端，难以充分发挥附属刑法的作用。特别刑法存在的问题要求我们必须对其进行一场深刻的变革，其中首要的是在对刑法典、刑法修正案、单行刑法和附属刑法的关系进行深刻分析的基础上对特别刑法的立法模式进行改革，遵循“集中”与“分散”的原则，谨慎地选择相应的立法模式。一般而言，刑法典规定的犯罪应该主要是能够简单描述的传统性犯罪，单行刑法规定的主要是类型较多，难以简单描述的犯罪，而附属刑法则主要规定与该法律密切相关的轻微经济犯罪与行政犯罪。其次，还应该注意特别刑法中刑罚的设置，不能一味的追求重刑化。更多还原

【Abstract】 On the standard of the applicable scope, the criminal law can be divided into ordinary criminal law and special criminal law. The Ordinary criminal law refers to the punishment code that has general applicable effects. The special criminal law includes criminal law of single file and subsidiary criminal law. In our country, the former refers to the Standing Committee of the National People’s Congress. The particular criminal law refers to the issues of particular person, particular area, particular time or particular things, and always appears through "determining "," additional regulation ". The latter are the criminal responsibility clauses in the non- criminal laws. Stability is the characteristic of the code, which offer the clear standard of standardizing for guiding the behavior of the citizen; however, it can cause the lagging of the punishment code. It is unable to adjust the new social relationships appearing because of the development of the society, and content can have been unseasonable gradually even. It causes the punishment code to be divorced from the society. In this case, special criminal law has appeared as the supplementary form to the punishment code. It can make the punishment code corresponding adjustment to the change of the society in right time. It can remedy the defect of the punishment code and make the punishment code maximum assurance with the social life. We can say this is a requirement of the society and the law. The existence of the special criminal law make the criminal legal system of our country demonstrates mainly on punishment code and supplemented by special criminal law.The special criminal law of our country has played an important role in the legal system of criminal law. This reflects not only from the modification of punishment code pieces of crime form, setting up the fresh crime, formulating new penalty in many aspects , but also including the modification of general provisions of the code. However, we should realize the defects that special criminal law has when we see the achievements of the special criminal law. Single file criminal law has many defects such as random legalization, and harmony bad, severe punishment trend and so on. In addition, the subsidiary criminal law mostly adopts the legislative modes of the summarizing type and looking after type. It mostly stipulates the detailed crime and the legal punishment. Thus, it makes subsidiary criminal law cavity, and the crime and punishment confused, so it is difficult to reflect the function of subsidiary criminal law.The defects of the special criminal law put forward the corresponding solution. A primary one is carrying on reform to legislative mode. It should analyze to punishment code, criminal law amendment, single file criminal law and subsidiary connection and difference. On this foundation, adopt the "centralized" and way to "disperse" to different items. Generally speaking, the crime that the punishment code stipulates should be mainly a traditional crime that can be described briefly. The criminal law of single file stipulates is mainly the criminals that there are more types, and cannot be described briefly. The subsidiary punishment law mainly related to the slight economic crimes and administrative crimes. In addition, it should also pay more attention to the establishment of the penalty at the criminal laws. It cannot pursuit severe punishment simply, especially to the regulation of death penalty. It should follow the balanced principle of crime and punishment. Because the special criminal law affected greatly by the criminal policy, and has the characteristic of emergency, so many places stipulate too carelessly. This needs strengthening the work to the interpretation of the special punishment law. It will make the special criminal law concert with the punishment code, the social life, and realize the unity within the criminal legal system.更多还原