拟制在本质上是一种类比推理,形式上是两个构成要件相似性的比较,但相似性必须通过相关性的判断才能得以完成,而刑法中相关性必须通过规范目的的认定才能实现。由于人才是法的中心,在规范目的的判断中必然会介入权力等非理性因素,但并不能由此否认拟制规定是非理性的。整体而言,类比推理作为拟制规定的重要方法,其关键在于寻找核心的比较点,虽然介入权力等非理性因素,但其最终是通过理性的方式加以看守的。在类比推理的过程中,立法者并非随意为之,而是通过设证(前理解)、归纳、比较和演绎等多种方法保证类比推理的合理性和有效性,使得拟制规定的设置仍然是一种正义原则的具体落实和体现。 Quasi-system is essentially an analogical reasoning, which is formally a comparison of similarities between the two components. However, the similarity must be determined by the judgment of relevance. However, the relevance of the criminal law must be determined through the identification of normative purposes. Because talent is the center of law, it is bound to intervene in power and other irrational factors in the judgment of normative purposes, but we can not therefore deny that the proposed regulation is irrational. On the whole, the key of analogical reasoning as an important method of fictional regulation lies in finding the core comparative points. Although it involves such irrational factors as power, it is ultimately guarded in a rational way. In the process of analogical reasoning, the legislator does not mean it arbitrarily, but assures the rationality and validity of analogical reasoning through various methods such as evidence-based (pre-understanding), induction, comparison and deduction, so that the setting of the proposed rule is still It is a concrete implementation and embodiment of the principle of justice.