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刑法的谦抑性,是指刑法应依据一定的规则控制处罚范围与处罚程度,即凡是适用其他法律足以抑止某种违法行为、足以保护合法权益时,就不要将其规定为犯罪;凡是适用较轻的制裁方法足以抑止某种犯罪行为、足以保护合法权益时,就不要规定较重的制裁方法。①由此可以看出刑法谦抑性的两层含义:一是罪之谦抑,要求严格收缩法定犯罪圈;二是刑之谦抑,要求严格收缩法定刑罚圈。可见,非犯罪化和非刑罚化是刑法谦抑的题中应有之义,也是实现刑法谦抑性的重要实现途径。
Modesty and restraint of criminal law refers to the criminal law should be based on certain rules to control the scope of punishment and the degree of punishment, that is, all applicable to other laws sufficient to suppress an illegal act, enough to protect legitimate rights and interests, they should not be defined as a crime; Light sanctions are sufficient to deter a criminal act, and do not provide for heavier sanctions when protecting legitimate rights. ① From this it can be seen that the two meanings of modesty and restraint in criminal law are as follows: First, it is the modesty of the crime, which requires the strict contracting of the statutory criminal circle; second, the modesty of the criminal requires the strict reduction of the legal penalty circle. It can be seen that decriminalization and non-punishment are the meanings of the modest suppression of criminal law, and also an important way to realize modesty of criminal law.