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法律实证主义是现代法律哲学的重要分支之一,它包含的实在法理论、法律体系理论与法律效力理论对法制建设非常重要。当前我国对法律实证主义哲学包含的理念缺乏关注,导致在刑事诉讼法再修改问题上出现诸多弊端,如:诉求抽象人权过多,关注宪法基本权不够;关注法律原则或法律理念过多,关注法律规则和法律技术不够;关注规则设置过多,而关注规则效力不够。当前刑诉法修改在即,关注法律实证主义之于法制构建的理论贡献已成为刑诉法学人亟需面对的又一大课题。
Legal positivism is one of the important branches of modern legal philosophy, and its theories of real law, legal system and legal validity are very important to the construction of legal system. At present, our country lacks attention on the philosophy of legal positivism, which leads to many drawbacks in the revision of the criminal procedure law. For example, there are too many human rights abuses in the abstract, paying attention to the lack of basic constitutional rights, paying too much attention to legal principles or legal concepts, Legal and legal skills are inadequate; too many rules of concern are set and rules of attention are not effective enough. At present, the revision of the current Criminal Procedure Law is paying close attention to the theoretical contribution of legal positivism to the construction of the legal system, which has become another urgent issue facing criminologists.