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《刑法》第12条第2款可称作“有利溯及之例外”条款,近年来广受关注的牛玉强案就涉及这一条款。对于该条款的解释,刑法学上的观点大致可类型化为“完全适用说”、“选择适用说”以及“完全不适用说”。“选择适用说”与“完全不适用说”意在排除该条款在某些个案中的适用,但两种学说都面临一系列学理上的难题。如果引入宪法层面的判断,则可对该条款进行合宪性限定解释。其路径有二:一是以限制基本权利的比例原则对该条款的适用范围加以限缩;二是将罪刑法定原则解释为具备宪法位阶的原则,继而将一部分有罪判决排除出该条款的适用范围。
Paragraph 2 of Article 12 of the Penal Code may be called the “Exceptional Traceability” provision. This case has been covered in Niu Yuqiang’s case of great concern in recent years. For the interpretation of the article, the views of criminal law generally can be categorized as “fully applicable to say ”, “choose to apply ” and “completely does not apply ”. “The choice to apply that” and “does not apply at all” is intended to exclude the application of the article in some cases, but both theories face a number of academic difficulties. If constitutional judgments are introduced, a constitutionally qualified interpretation of the provision can be made. There are two routes: one is to limit the scope of application of the article by limiting the proportion of basic rights; the other is to interpret the principle of legality of crime and punishment as having the constitutional level principle, and then exclude some of the criminal judgments from the application of the article range.