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长期以来,我国法学理论教材在谈及法的分类时多将刑法归结于公法的范畴,这似乎已经成了不争的事实。近年,随着我国刑法学界“学派之争”1的推进,在客观主义中以法益侵犯说为基础的结果无价值理论已被逐渐了解。本文的写作拟采用“倒叙”的方法,在清楚公法与私法划分的依据之争及我国通说之后,从犯罪论出发,以犯罪论为立脚点探寻不同学说在刑法的目的与任务之间的差异及本文观点,最后综合得出刑法公法说不当之结论。
For a long time, it seems that the legal textbook of our country, when it comes to the classification of laws, attributing it to the category of public law, seems to have become an indisputable fact. In recent years, as China’s criminal law academic circle “the struggle of the school ” 1 advance, in the objectivism theory of infringement of the interests of law based on the results of non-value theory has been gradually understand. This article’s writing intends to use the method of “flashback”, after clearly defining the basis dispute between public law and private law and our country’s explanation, starting from the theory of crime, we should explore the difference between the purpose and the task of different theories in criminal law The differences and the viewpoint of this article, finally concluded that the criminal law of public law said inappropriate.