CAJ | 학술논문

实质解释论为了摆脱违背罪刑法定原则的嫌疑,从日本刑法学界引入了"罪刑法定原则的实质侧面"这一概念,应该说是不奏效的.因为根据日本刑法学理论,罪刑法定原则的形式侧面旨在限制司法权,实质侧面旨在限制立法权,二者各司其职,共同构成对权力的全面制约.法官不需要也不应当为了实现实质正义而进行实质解释,因为这原本就是立法者的职责.况且,一旦允许法官将处罚必要性作为刑法解释的根据,那么谁都无法确保法官不会为所欲为,这又必将离实质正义越来越远.
실질해석론위료파탈위배죄형법정원칙적혐의,종일본형법학계인입료"죄형법정원칙적실질측면"저일개념,응해설시불주효적.인위근거일본형법학이론,죄형법정원칙적형식측면지재한제사법권,실질측면지재한제입법권,이자각사기직,공동구성대권력적전면제약.법관불수요야불응당위료실현실질정의이진행실질해석,인위저원본취시입법자적직책.황차,일단윤허법관장처벌필요성작위형법해석적근거,나요수도무법학보법관불회위소욕위,저우필장리실질정의월래월원.
In order to get rid of suspected violation of the principle of legality, the substantial interpretation theory introduces the concept of "the substantial aspects of the principle of legality" from Japan. But it should be said that it didn't work, because, according to the theory of Japan's criminal law, the formalistic aspects of the principle of legality is aimed at limiting judicial power, and the substantial aspects of the principle of legality is intended to limit the legislative power. The two sides constitute a comprehensive restriction of power.The judge needn't and shouldn't do the substantial explanation in order to realize the substantial justice, because it was originally a duty of lawmakers. Moreover, once the judge is allowed to interpret the criminal law with a basis of the necessity of punishment, then nothing can ensure that no judge would do whatever they want, which, in turn, will be getting more and more distant from the substantive justice.