摘要
刑法主观主义与客观主义的争点在于对结果要素之于刑事责任的意义的不同理解。刑法主观主义反对将结果视作刑事责任的基础,主张刑罚针对的是行为人对法益的敌视或轻视态度以及在此态度下实施的行为本身。刑法的主观主义化是现代刑法的发展趋势。我国多数学者对刑法主观主义的批判是出于对主观主义理论内涵和理论基础的误解。从被客观主义者奉为思想渊源的刑事古典学派的思想中完全可以演绎出刑法主观主义的命题,刑法主观主义并不与古典自由主义的危害性原则相冲突,关于主观主义不利于自由保障的批评缺乏合理性。刑法客观主义提出的"危险结果"概念蕴含着悖论,难以自圆其说。在犯罪最低限度的要求上持主观主义立场不但符合公众的正义直觉,而且有利于法益保护目的的实现。
At the core of the controversies between subjectivism and objectivism of criminal law are the different understandings of the significance of the element of result to criminal liability. The subjectivism of criminal law refuses to take result as the basis of criminal liability and maintains that criminal contempt of legal interests and his pu be nishment should be directed at an actor＇ s hostility to or havior based on such hostility or contempt. The subjectivization of the criminal law is a trend of development of the contemporary criminal law. The criticisms of subjectivism of criminal law by the majority of scholars in China are based on misunder- standings of this theory and its theoretical basis. Actually subjectivism of criminal law can easily be deduced from the thoughts of criminal classical school, which is taken by objectivism of criminal law as its ideological origin. Subjectivism of criminal law is not contradictory to the principle of harmfulness of classical liberalism. The criticism that subjectivism is harmful to the protection of freedom is not reasonable and the concept of ＂dangerous result＂ put forward by objectivism of criminal law is self-contradictory. Taking a subjective position on the minimum constitutive requirement of crime not only conforms to the public sense of justice, but also is conducive to the realization of the objective of protecting legal interest.
出处
《环球法律评论》
CSSCI
北大核心
2014年第2期65-84,共20页
Global Law Review
