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刑法明确性原则在德日具有宪法性地位,是刑法的首要原则;而在中国,刑法明确性原则还未获得宪法性地位,且在排序上处于刑法的目的与任务之后。德日的刑法理论和刑法立法均强调刑法明确性原则由罪的明确性和刑的明确性构成;而在中国,虽然理论上强调刑法明确性原则由罪的明确性和刑的明确性构成,但立法上主要强调的是罪的明确性。刑法明确性原则的具体实现途径在德日包括狭义的法律和空白刑法中需要参照的法律法规要明确,在少数情况下还要求特别授权的委任命令和判例具有明确性;而在中国,刑法明确性原则的具体实现途径除了要求狭义的法律和空白罪状中需要参照的法律法规具有明确性之外,还要求刑法司法解释具备明确性。通过比较研究发现,德日刑法明确性原则的法律地位和内部结构值得中国学习,但在具体实现途径上应当考量中国的特殊性。
The principle of the clarity of criminal law has the constitutional status in Germany and Japan and is the primary principle of criminal law. In China, the principle of the clarity of criminal law has not acquired the status of a constitution, and lies in the order after the purpose and task of criminal law. Both the criminal law theory and the criminal law legislation in Germany and Japan emphasize that the principle of the clarity of criminal law consists of the clarity of the crime and the clarity of the punishment. While in China, although the principle of the clarity of criminal law is theoretically constituted by the clarity of the crime and the clarity of the punishment, However, the main emphasis of legislation is the clarity of sin. Specific ways to realize the principle of the clarity of criminal law The laws and regulations that need to be consulted are clear in Germany and Japan including the narrow law and the blank criminal law. In a few cases, the orders and precedents that require special authorization are clear. In China, Specific ways to achieve the principle of sexuality in addition to the narrow legal and blank guilty of the need to refer to the laws and regulations with clarity, but also requires that the judicial interpretation of criminal law with clarity. Through the comparative study, it is found that the legal status and internal structure of the principle of the clarity of criminal law in Germany and Japan deserve study in China. However, China should consider the particularity of China in its concrete realization.