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类比推理被称为法学的重大发现,法律方法的核心。其最大的特点在以“同案同判”的法理为基础,根据案件的相似性,从而实现法律规则适用的普适性。但几乎是所有的学者都在刑法中的罪刑法定原则上达成了共识,任何对此否定性的理论探讨都冒着巨大的理论风险。刑法中禁止类推(有利于被告的类推除外)使得我们不得不反思,刑法中的类推与类比推理的矛盾在哪里,它们之间的关系又是如何?
Analogical reasoning is known as the major discovery of law, the core of legal methods. Its greatest feature is based on the jurisprudence of “co-perjury” and based on the similarities of cases, so as to realize the universality of the application of legal rules. However, almost all scholars have reached a consensus on the principle of legally prescribed punishment for crimes and punishments in criminal law. Any theoretical discussion on this negative argument runs a great theoretical risk. Prohibition of analogy in criminal law (in favor of the defendant analogy excluded) makes us have to reflect on the analogy of the analogy of criminal law and the analogy where the conflict between the relationship between them?