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根据刑法规范和罪刑法定原则,构成单位犯罪必须有刑法的明文规定。但对单位实施非单位犯罪行为应当如何定罪处罚,学界和相关司法解释均存在不同观点,单位犯罪立法解释的出台为争议划上句号。结合单位犯罪刑法理论和刑法规范进行考量,单位犯罪立法解释的实质是法律拟制。为了坚守刑法保障人权的机能和恪守罪刑法定原则的基本精神,应当对法律拟制做严格的限制。法律拟制应当属于立法的范畴,其设置应当慎之又慎。司法机关无权设置法律拟制,也应当否认司法解释具有法律拟制的效力和价值。
According to the norms of the criminal law and the principle of legality of crimes and punishments, the crimes that constitute a unit must have express provisions of criminal law. However, how to convict and punish the non-unit crime committed by the unit? There are different opinions in the academic circle and relevant judicial interpretation. The introduction of legislative interpretation of the unit crime ends the dispute. Combined with the unit criminal theory of criminal law and criminal law norms to consider, the unit of crime legislative interpretation of the essence of the legal system. In order to uphold the function of safeguarding human rights in criminal law and abide by the basic spirit of the statutory principle of crime and punishment, strict restrictions on legal formulation should be made. Legal fiction should belong to the category of legislation, its setting should be cautious. The judiciary does not have the power to set the law and should also deny that judicial interpretations have the legal effect and value of legal formulation.