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刑法渊源是刑法学理论研究中一个不可回避的重要问题。传统刑法理论从罪刑法定的角度认为刑法的渊源应在制定法意义上使用,刑事司法解释不包括其中。这一认识与司法解释在实践中的地位不符,而且这一理论本身有诸多问题需要予以重新审视。立足于对传统理论认识误区的分析,本文提出现阶段应扩大刑法渊源的范围,把刑事司法解释纳入其中,并认为由于刑事司法解释本身的特殊性,在刑法渊源中,其是一个有别于制定法渊源的、特殊的刑法渊源。
The origin of criminal law is an important and unavoidable problem in the theoretical study of criminal law. The traditional theory of criminal law believes that the origin of criminal law should be used in the meaning of statute of law from the perspective of the statutory punishment and punishment, which is not included in criminal judicial interpretation. This understanding does not accord with judicial interpretation in practice, and there are many problems in this theory that need to be revisited. Based on the analysis of the misunderstanding of the traditional theory, this paper proposes that the scope of the criminal law should be expanded and the interpretation of criminal justice should be incorporated into it. It is believed that due to the particularity of the interpretation of criminal justice, The origin of law, a special source of criminal law.