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文本表达与司法实践背离的问题自古有之,直到今天仍然困扰着我们。传统法比附援引在弥合法律文本与司法实践的缝隙方面发挥了至关重要的作用,与缘法定罪之间存在一定的张力,二者共同保证了司法结论的合法性与正当性。如何约束司法者比附的恣意性,是比附援引能够发挥应有作用的前提保证。探究比附援引的源与流对当下罪刑法定下如何把握扩张性解释的度具有一定的启发意义。
The problem of deviating textual expression from judicial practice has existed since ancient times and continues to bother us today. Traditional legal attachments have played a crucial role in bridging the gap between legal texts and judicial practice, and there is a certain tension between them and the criminal conviction. Both of them guarantee the legality and legitimacy of judicial conclusion. How to restrain the arbitrary nature of the judiciary is a guarantee of the premise that the appendix can play its due role. It is of some enlightenment for us to explore how to grasp the degree of expansive interpretation of the current criminal statute under the current sources and streams of reference.