日本刑法的过去·现在·未来

The Past, Present and Future of Japanese Criminal Law

The past of Japanese criminal law can be traced back to Taiho Code. The criminal laws before modern era tended towards leniency. As the first modern criminal law, the 1880 Criminal Code made discretion almost impossible, and therefore was replaced by the current 1907 Criminal Code. The 1907 Criminal Code was enacted under the influence of the criminal theory of Germany, with absorbing the viewpoints of modern schools of criminal theory, and is honored as “the unique criminal law worldwide”. In order to adapt to the social reality, the 1907 Criminal Code was being amended constantly, and the present of Japanese criminal can be said as the era of the victims. As to the future of Japanese criminal law, it is not the time to revise the criminal law completely. When partially amending the criminal law, attention should be paid to the raising of statutory penalty, the unification of imprisonment, the abolish of death penalty and the introduction of security disposition.

日本刑法的过去可追溯到《大宝律令》，近代以前的刑法整体上体现了宽刑主义。近代第一部刑法1880 年刑法由于导致刑罚裁量余地微乎其微，仅实施了26 年后就被1907 年现行刑法替代。现行刑法的制定受德国刑法学的影响，同时吸收了近代学派的观点，被誉为“世界上独一无二的刑法”。为适应时代需求与社会现实，现行刑法不断受到修正，可以说日本刑法的现在属于被害人时代。就日本刑法的未来而言，全面修订刑法的时代仍尚未到来，将来在部分修正刑法时，需要注意法定刑的重罚化、自由刑的单一化、废止死刑、新增保安处分等方面的问题。