许霆案之法学反思

摘要

According to the rules of current ＂Penal Pode＂, Xu Ting case, compared with curt ruling ＂thieves offencs＂, is a typical criminal case that has been resulted form the civil case and is more suitable when it is regarded as embezzlement crime. The apocalypse getting from ＂Tu Ting case＂ is that penal code can not wrong an innocent people as well as indulge a crime personp; And, penal should go with in response to the offense, such as：offense is light when penal is light, offense is heavy when the penal weigh. These should be under the modern social penal code principle by the common citizen,lawgiver andjudicatory who are going to pursuing law candor.%“许霆案”是一个由民事行为转化为犯罪行为的典型案件，根据我国现行《刑法》的规定，比之于法院判决“盗窃罪”的定性，其定性为“侵占罪”更为合适。“许霆案”的启示是，刑法既不能冤枉一个无辜者，也不能放纵一个犯罪人；而且，应罪刑相适，罪轻则刑轻，罪重则刑重。这是现代社会刑法理念下普通公民、立法者、司法者应该追求的法律公正。