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法律必须明确,否则,守法者会“无所措其手足”。基于此,世界各国与地区均通过立宪或司宪的途径确立了法律明确性原则。然而,在法律明确性的判断标准上,理论界与实务界缺乏共识。基于完备性、可操作性的考量,法律明确性标准有三个明确性公式。这三个公式在辅助原则、构成要素、参照基准、解释方式等方面存在较大差异,其对法律的明确性要求也呈递减趋势。在具体的案件中,应按照法律所涉及的法律领域,结合法律措施对基本权利的干涉力度与特定事项的特质,从上述三个明确性公式中选择其一,作为法律是否符合明确性原则的判断标准。
The law must be clear, otherwise, law-abiding officials will be “at a loss what to do with their hands and feet.” Based on this, all countries and regions in the world have established the principle of legal clarity through constitutional or constitutional means. However, there is a lack of consensus on the criterion of legal clarity between theorists and practitioners. For completeness and operability considerations, there are three definiteness formulas for legal clarity standards. The three formulas are quite different in the auxiliary principles, components, reference bases and interpretation methods, and their requirements on the clarity of law also tend to decrease. In specific cases, we should choose one of the above three definite formulas according to the law fields involved in the law and the interference with the fundamental rights of the legal measures with the characteristics of the specific issues, as the law is in line with the principle of clarity Judgment criteria.