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在我国,随着人们对大陆法系公、私法划分理论的接受,刑法被人为地公法化了。然而,刑法公法化的理论存在诸多疑问。既不符合公、私法的划分理论,也不符合刑法在法律体系中的地位;而且,从刑法公法化的理论出发,更无法解释我国当前正在兴起的刑事和解的制度实践。因而,不能将刑法的公法性与刑法是公法等同起来,刑法只能是一种保障法,是保障公法、私法、社会法和生态法实施的法律。
In our country, with the acceptance of the theory of division of public law and private law in the civil law system, the criminal law has been artificially publicized. However, there are many questions about the theory of public legalization of criminal law. It does not accord with the division theory between public and private law nor does it conform to the status of criminal law in the legal system. Moreover, it can not explain the current system of criminal reconciliation in our country from the theory of public legalization of criminal law. Therefore, the public law of the criminal law can not be equated with the criminal law as public law. The criminal law can only be a kind of safeguard law and is a law that guarantees the implementation of public law, private law, social law and ecological law.