Abstract

As a product of scientism and rationalism, the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions. In practice, therefore, it has not been fully able to play its role in protecting freedom and has constantly wavered over the determination of criminal punishments. Even though it has been constantly challenged, the principle of nullum crimen sine lege should be adhered to and renewed as an important principle of the modern rule of law. First, the principle of de lege lata is being questioned by theories of substantive law, and sources not in the form of law have become the de facto basis of criminal punishment. For this reason, it is necessary to reaffirm the nature of de lege lata as an exclusive source of law. Second, although the possible boundary of the meaning of criminal law texts cannot be clearly delineated empirically, one should not therefore reject the possible boundary of this meaning. The practice of delineating an objective boundary based on empirical facts should be abandoned and normative boundaries should be delineated and justified. Finally, the responsibility for judicial clarity should be recognized and accepted as a supplement to legislative clarity, and a two-tier system of legislative and judicial clarity should be developed. Here, the definite nature of criminal legislation should develop standards in terms of behavioral guidance and judicial restrictions, and clarity in criminal justice should start from the legislative text and establish general secondary rules to make the text more specific, bringing it ever closer to specific and particular case facts, and eventually establishing a relationship of subsumption between the legislative text and the facts of the case.

摘要

作为科学主义和理性主义的产物，原罪不成立原则一直受到时代和理论假设的影响。因此，在实践中，它未能充分发挥保护自由的作用，在刑事处罚的确定上不断摇摆不定。尽管法律不断受到挑战，但应坚持和更新无罪原则，将其作为现代法治的重要原则。首先，原则现行法是由实体法的理论提出质疑，而不是法律的形式来源已经成为刑事处罚的事实依据。为此，有必要重申delege lata的性质作为唯一的法律渊源。其次，虽然刑法文本可能的含义边界无法从经验上得到清晰的划定，但不应因此拒绝这一含义的可能边界。应摒弃根据经验划定客观界限的做法，划定规范界限并加以论证。最后，应承认和接受司法明晰责任，作为立法明晰的补充，建立立法和司法明晰两级体系。在此，刑事立法的确定性应在行为指导和司法限制方面制定标准，刑事司法的明确性应从立法文本入手，建立一般性的二级规则，使文本更加具体，