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在“盐酸案”、“电力盗窃案”的判断上,考夫曼犯了两个颇为类似的错误。从刑法学传统概念范式看,一般认为可归因于其对类推的认识与运用存在问题。实际上,类推已不具有足够的说服力。更深层次的原因在于,考夫曼继受了哲学诠释学的读者中心论立场,消解了司法判决所依凭的法律规范之标准,从而陷入了主观主义、相对主义的泥淖。他的类推思维是一种存在着严重缺陷的诠释学思维。只有站在诠释学的理论高度,才能更好地把握考夫曼所犯错误的根源,才能厘清为何他对类推概念、禁止类推观念、进而对法律发现过程均产生了误读。
In “hydrochloric acid case”, “power theft case” judgment, Kaufman made two quite similar mistakes. Judging from the traditional conceptual paradigm of criminal law, it is generally believed that problems attributable to its cognition and application of analogies exist. In fact, analogy is not convincing enough. The deeper reason is that Kaufman has inherited the reader-centered position of philosophical hermeneutics and has dispelled the standard of legal norms that the judicial decisions depend on, thus falling into the trap of subjectivism and relativism. His analogical thinking is a kind of hermeneutic thinking that has serious flaws. Only standing on the theoretical level of hermeneutics can we grasp the root of the mistakes made by Kaufman and clarify why he misunderstood the concept of analogy and the analogy of analogy and thus misinterpreted the process of law discovery.