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从1997年《刑法》正式颁布,社会危害性理论就处在争议之中,刑法学界的争辩、讨论一直未断,批判者之声多盖过了肯定者,有人指出社会危害性是现代刑事法治的反动。法学者从不同的视角各抒己见表达对社会危害性理论的看法,分歧很大,是构建中国特色的社会主义刑法理论的一场头脑风暴。本文认为,这种危害性虽存在弊端,但完全否定社会危害性理论的刑法地位的观点有失理性。本文从当前法学家对社会危害性较多的争辩出发,提出合理解释应遵循的原则,阐述其在当代中国刑法环境的应用价值。
From the formal promulgation of the “Criminal Law” in 1997, the theory of social harmfulness is in the midst of controversy. The arguments and debates of criminal law scholars have not been interrupted and the voice of critics has overshadowed the affirmation. Some have pointed out that the social harmfulness is the modern criminal law The reactionary. Law scholars express their opinions from different perspectives and express their opinions on the theory of social harmfulness. They are divided greatly and are brainstorming constructions of the socialist criminal law theory with Chinese characteristics. This paper argues that although there are drawbacks to this kind of harm, it is irrational to completely negate the criminal law status of social harmfulness theory. Based on the current jurists’ debates over the harmfulness of society, this article puts forward the principle that should be followed in explaining reasonably, and expounds its value in the contemporary Chinese criminal law environment.