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罪刑法定原则是现代刑法的基本原则之一,关于中国古代社会是否存在罪刑法定原则有肯定说与否定说之争。罪刑法定原则的价值在于保障人权,适用准则是禁止类推,它与“人治”根本相分离。现代罪刑法定原则与中国古代社会的罪刑法定具有本质上的异质性,我国古代的罪刑法定只是一种思想,并没有上升为一项基本的法律原则。而且,由于中国古代社会奉行专制体制和人治统治,罪刑法定原则欠缺生长的现实土壤,这就决定了中国古代的罪刑法定思想不可能发展成为罪刑法定原则,也不可能成为保护犯罪人的大宪章。
The principle of legally prescribed punishment for crimes is one of the basic principles of modern criminal law. There is a dispute over the existence of the principle of legally prescribed punishment for crimes in ancient Chinese society. The principle of legally prescribed punishment for crimes is based on the protection of human rights. The applicable guidelines are forbidden analogy and are fundamentally separated from “rule of man.” The legal principle of crime and punishment in modern times is essentially heterogeneous with the statutory system of crimes and punishments in ancient Chinese society. The ancient Chinese crime and penalty statute was only an idea and did not rise to a basic legal principle. Moreover, since the ancient Chinese society adhered to the system of authoritarianism and the rule of the rule by the people, the legal principle of crime and punishment lacked the realistic soil for growth, which determined that the legal thought of crime and penalty in ancient China could not develop into the legal principle of crime and punishment and could not become the Magna Carta .