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刑法渊源是一个理论性和实践性都很强的法学概念,同时又是一个兼有一定深度学理性和一定程度技术性的法学术语。准确把握刑法渊源非常重要,它关系到如何“发现”和“解读”罪刑法定原则的“法”、法官应该从哪里寻找办案的法律依据等基础性问题。遗憾的是,我国刑法学界和实务部门对这个问题的重视和研究还非常不够,尤其是从法官法源的视角,系统思考这个问题的成果更加匮乏。办案之余,笔者经常遇到如何寻找“刑法”的难题,也经常看到不少法官困惑于不识“刑法”的状况。为此,笔者不揣浅陋,谈谈对这个问题的认识。
The origin of criminal law is a legal concept that is both theoretical and practical. At the same time, it is a legal terminology that combines certain depth with academic rationality and a certain degree of technicality. Accurately grasp the origin of criminal law is very important, it is related to how “discovery ” and “interpretation ” “law ” of the principle of legally prescribed punishment for crimes, where judges should find the legal basis for handling cases and other basic issues. Regrettably, our country’s criminal jurisprudence and substantive departments attach great importance to and study of this issue is still not enough, especially from the perspective of the source of the judge, the systematic thinking of the problem more scarce. Apart from handling cases, I often encounter the problem of how to find “criminal law”, but also often see many judges puzzled in the “Criminal Law” situation. For this reason, I do not clumsy, talk about the understanding of this issue.