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扩张解释与类推解释的界分是刑法上一个长久的难题。这可能导致对类推禁止的怀疑。晚近以来,我国刑法学界逐渐出现了这种声音。如果扩张解释与类推解释的界分不具有可能性,那么可能得出类推解释与扩张解释实质上是同一事物,会否定类推解释禁止,而这会严重削弱罪刑法定原则的根基,造成刑罚力的过分干涉,压缩国民的自由空间。因而本文出于坚持罪刑法定原则的目的,尝试论证扩张解释与类推解释界分的可能性,并在此基础上探讨两者的界分标准。
The division of expansion and analogy is a long-standing problem in criminal law. This may lead to suspicion that analogies are forbidden. Since lately, this voice has gradually emerged in the criminal law scholars in our country. If there is no possibility of a division between expansionary interpretation and analogical interpretation, then it is possible to conclude that analogical interpretation and expansionary interpretation are essentially the same thing and will be denied analogous to prohibiting the interpretation, which will seriously weaken the foundation of the statutory principle of crime and punishment and result in penalty power Excessive interference, compression of the people’s free space. Therefore, for the purpose of upholding the statutory principle of the crime and punishment, this article attempts to demonstrate the possibility of expanding the interpretation and analogical interpretation of the boundaries, and on this basis, to explore the two boundaries of the standard.