犯罪论体系的思考  

Thinking about the System of the Theory of Crime

作　　者：张明楷[1] 

机构地区：[1]清华大学,北京100084

出　　处：《政法论坛》2003年第6期25-37,共13页Tribune of Political Science and Law

摘　　要：罪数论以及法条竞合、期待可能性、择一认定等应纳入犯罪论体系 ,作为法律后果意义上的刑事责任应排除在犯罪论之外 ;构建犯罪论体系 ,必须妥善处理犯罪客体 (法益 )与构成要件 ,主体要件与其他要件 ,主观要件与客观要件 ,单位犯罪与自然人犯罪 ,作为犯与不作为犯 ,故意犯罪与过失犯罪 ,犯罪既遂与犯罪未遂、中止、预备 ,犯罪成立条件与排除犯罪事由 ,排除犯罪事由之间 ,以及“定罪论”与其他犯罪理论之间的关系 ;构建犯罪论体系 ,必须遵循有利于保障人权、有利于认定犯罪以及体系性、经济性的原则 ;可以构建故意犯罪与过失犯罪相并列的、两要件的、区分排除违法性事由与排除罪过性事由的犯罪论体系。Theory of quantity of crime, overlap of articles of law, probability of anticipation, alternative conviction, etc. should be integrated into the system of the theory of crime. The criminal responsibility, in the respect of the legal consequence, should be excluded from the theory of crime. There is no need to create a chapter for “theory of conviction”. To construct the system of the theory of crime, we must handle carefully and skillfully with the following nine relationships: the one between the object of crime (legal interest) and the constitutive elements of a crime, the one between the constitutive elements of the subject and those elements of the other, the one between the constitutive elements of the subjective aspects and those elements of the objective aspects, the one between crime committed by a unit and that committed by a natural person, the one between crime of commission and criminal omission, the one between intentional crime and negligent crime, the one between accomplished crime and preparation for a crime, criminal attempt, as well as discontinuance of crime, the one between establishing elements of a crime and causes in fact removing crime, the one among causes in fact removing crime,and the one between “theory of conviction” and other theories of crime. To construct the system of the theory of crime, we also must abide by the following four principles, namely, the principle of safeguarding human rights, the principle in favor of determining the commission of a crime, and the principle of systematization, as well as the principle of economics. We may construct a new system of the theory of crime, under the frame of which intentional crime parallels with negligent crime, only two constitutive elements of a crime are necessary, and causes in fact removing illegalities are differentiated from those removing culpabilities.

关 键 词：犯罪论体系 刑法学 故意犯罪 过失犯罪 罪数论 刑事责任 

分 类 号：D914[政治法律—刑法学]