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刑法作为调整犯罪和刑罚的法律规范,在我国法律体系中占有重要的地位。但刑法在具体的司法实践中却存在适用情况不清的问题,既在面对刑法与其他法律适用相冲突时,没有清晰的标准用以明确是否适用刑法。而在面对这种情况时,刑法一方面要考虑其“保护法益,惩罚犯罪”的目的,另一方面也要考虑其具有“谦抑性”、“最后性”的属性,从而导致不能有效地做出选择。而在不同的法律适用冲突的情况下,刑法也有着不同的取舍。在于民法冲突的时候,刑法需要考虑其特殊的调整对象;而在与行政法冲入的时候,刑法需要考虑其特殊的调整手段。因而,本文以刑法的法律地位为视角,通过对刑法法律地位的阐述,并结合案例进行具体分析,以期为刑法在司法实践中的运用找寻合理的道路。
As the legal norms of crime and penalty adjustment, criminal law occupies an important position in the legal system of our country. However, in specific judicial practice, criminal law has the problem of unclear applicability. When there is a conflict between the application of criminal law and other laws, there is no clear standard to clarify whether criminal law is applicable or not. However, in the face of this situation, the criminal law must consider its purpose of “protecting the legal interests and punishing the criminals” on one hand, and on the other hand it should also consider its “modest and restrained” and “final” character Attribute, which led to not be able to effectively make a choice. However, in the case of different conflicts of law application, the criminal law also has different choices. In the conflict of civil law, the criminal law needs to consider its special object of adjustment. When it enters into with the administrative law, the criminal law needs to consider its special adjustment measures. Therefore, this article from the perspective of the legal status of criminal law, through the elaboration of the legal status of criminal law, combined with the case of specific analysis, with a view to the criminal law in judicial practice to find a reasonable path.