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制度转型时期日益复杂的生活态势,必然导致不断有新的犯罪进入刑法规制范围,但我国97刑法立法上犯罪的增设却未能收到预期效果。犯罪的多样化似应带来刑罚的多样化,但这种“以罪定刑”的思路并未从根源上揭示罪刑关系,故无法解决我国现实问题。深层次分析:犯罪的应受刑罚处罚性的本质特征内含着“以刑定罪”规律,该规律的客观存在使得无论立法层面还是司法层面,刑罚的具体形态都决定着犯罪的内涵和外延。对该规律的认识和自觉运用,必将引起对罪刑关系的重新调整——在当前国情下刑罚应该限制于以自由刑为主的刑罚体系而不应扩大到罚金刑;凡以财产方式能够有效承担的法律责任,则应统统划归行政或民事责任范畴。
The increasingly complicated life situation during the period of institutional transformation will inevitably lead to the continuous entry of new crimes into the scope of criminal law regulation. However, the additional criminalization of China’s 97 criminal law legislation failed to receive the expected results. Diversification of crimes should lead to the diversification of penalties. However, this kind of “criminalization of crimes” does not reveal the relationship between crime and punishment from the root causes, so it can not solve the problems in reality in our country. In-depth analysis: the essence of punishable punishment of crime should contain the law of “criminalization of criminal”, and the objective existence of the law makes both the legislative form and the judicial form, the specific form of punishment determines the connotation of crime and Extension. The understanding and conscious application of the law will surely lead to the readjustment of the relationship between crime and punishment. In the current national conditions, the penalty should be limited to the penalty system based on free punishment instead of the penalty. Where it is effective in the form of property Legal liability assumed should be classified as administrative or civil liability.