一、导论在刑罚权成为公共权力后,基于社会契约论或人民主权的国家权力建构,必然要使每一次刑罚权的行使都具有正当性。故,近代以来的刑事法治最基本的要求是罪刑法定原则,也是自由主义政制的基本要求。它包含两个内容:一是犯罪方面必须严格符合法律规定;一是课处刑罚必须符合法定原则。刑法的法定主义原则与私法中的 I. Introduction After the penalty right has become public power, the construction of state power based on the social contract or people’s sovereignty will inevitably make every exercise of penalty right justified. Therefore, the most basic requirement of the criminal law since modern times is the principle of legality of crimes and punishments, and is also the basic requirement of the liberal political system. It contains two elements: First, the crime must be strictly in line with the law; First, the penalties must be in line with the statutory principles. The legal principle of criminal law and private law