论文部分内容阅读
法的适用是一项系统化的复杂工程,正确适用与否不仅衡量着立法水平的高低,更拷问着司法者及执法者能否准确理解、运用司法权及执法权的智慧。本文试以某区检察机关一起非法经营案为切入点,解析由此蕴含着的法定犯在司法实践中面临的一个深层问题,即部分法定犯前置性法律规范出现缺失(或“断层”)或不完善的情况,对刑事法律规范的具体操作和适用是否会因这种“断层”的出现而导致违反罪行法定等法治精神?其适用的理论基础是否具有充分的合法性?并由此进一步导出,在此种情况下,公检法机关以何种标准进行立案、提起公诉及审判?本文抛砖引玉,为刑事理论及司法实践提供参考和借鉴。
The application of law is a systematic and complex project. The correct application of the law not only measures the level of legislation, but also interrogates the judicial and law enforcement officials’ ability to accurately understand and use the wisdom of judicial power and law enforcement power. This article attempts to prosecutorial organs with a case of illegal business as a starting point, to resolve the legal crimes that contain the legal practice in the face of a deep-seated problem that some legal prejudices of legal norms (or “fault Whether or not the specific operation and application of the criminal law norms will lead to the violation of the statutory spirit of the rule of law such as the crime because of such a ”fault"? Whether the applicable theoretical basis is fully legitimate? And in this way, it is further deduced that under such circumstances, what kind of standards should be put on file by public security organs for prosecution and prosecution? This article starts with a view to providing reference and reference for criminal theory and judicial practice.