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宪法是整个法律体系的基石,刑法的制定、修改和解释应以宪法为指针。当前风险刑法立法进程加快,它以犯罪处置早期化为特征,重视平等原则和比例原则所体现的宪法价值,确保权利保障在风险刑法中不至于萎缩。平等原则是合宪性原则的形式审查,比例原则是合宪性原则的实质审查。平等原则在刑法中对性别平等、公私财产平等和行业平等领域有着重要的检视价值。比例原则是合宪性原则的说理工具,以目的正当性为出发点,构建了手段适当(方法有效性)、手段必要(损害最小性)和狭义比例(效果经济性)三公式,具有精致的可操作性和说理性。根据比例原则,相关罪名具有废除或修改的必要。
Constitution is the cornerstone of the entire legal system. The formulation, revision and interpretation of criminal law should be guided by the Constitution. At present, the legislative process of the current risk criminal law is accelerated. It takes the early criminalization as the characteristic, emphasizes the constitutional value embodied in the principle of equality and proportion, and ensures that the protection of the right will not be shrunk in the risk criminal law. The principle of equality is the formal examination of the principle of constitutionality, and the principle of proportionality is the substantive examination of the principle of constitutionality. The principle of equality has an important value in the criminal law in the field of gender equality, public-private property equality and industry equality. The principle of proportionality is the justification tool of the principle of constitutionality. Starting from the justification of purpose, the three formulas of proper means (method validity), means necessary (minimal damage) and narrow proportionality (effect economy) are constructed, Operability and rational. According to the principle of proportionality, the relevant charges have the necessary abolition or amendment.