司法解释引发的法学思考

《关于行为人不明知是不满十四周岁的幼女,双方发生性关系是否构成强奸罪问题的批复》和已执行的《最高人民法院关于审理未成年人刑事案件具体应用法律问题的解释》的这两项司法解释引起了社会和法学界的极大反响,质疑和争论纷呈。本文拟从法理学的角度,司法解释的社会功能、合法性以及司法解释在现实中引发的问题做一些思考和探讨。

A ponder on jurisprudence initiated by judicial interpretation

Two judicial interpretations "Give a Written Reply to a Subordinate That the Feasor Did Not Know Perfectly Well Whom Is a Young Girl Under 14 Year-Old;Both Has Sexual Relationship Whether He has Constituted Rapes Crime" and "An Explanation on Concrete Application Legal Matter of Which Supreme People's Court Tries Minor Criminal Case" which has been executed have caused an enormous echo of social and the legal profession,questionsed and argued numerously.This article makes some ponders and the discussion drawing up from the jurisprudent angle,the social function and the validity of the judicial interpretation,as well as the issue of which initiated in the reality.