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道德评价能否在刑法适用中予以考虑,是刑事领域中的难题。一方面,道德评价在刑事领域中的体现是普遍地存在的实然现象;另一方面,法治原则一般又要求道德评价不应介入刑事司法领域,否则,罪刑法定的基本原则将受到冲击。从理论上来看,道德评价因素在刑法解释和适用中的考量既是法理的要求,也是刑法原则所许可的,那种绝对排斥道德评价的观点,看似符合法治原则,但是实际上并不能成立。当然,对道德评价的考量与运用,应当在罪刑法定原则之下,在法律方法论的范围内,并在对其认真甄别、选择的基础上进行。
Whether moral evaluation can be considered in the application of criminal law is a difficult problem in criminal field. On the one hand, the moral evaluation in the criminal field is a very common reality; on the other hand, the rule of law generally requires that the moral evaluation should not intervene in the field of criminal justice. Otherwise, the basic principle of the legal punishment will be undermined. From a theoretical point of view, the consideration of moral evaluation factors in the interpretation and application of criminal law is not only the demand of jurisprudence but also the principle of criminal law. The view of absolute exclusion of moral evaluation appears to be in line with the principle of the rule of law but can not in fact be established. Of course, consideration and application of moral evaluation should be carried out on the basis of the legal principles of crime and punishment, within the scope of legal methodology, and on the basis of careful screening and selection.