行为无价值论的疑问--兼与周光权教授商榷

Problems in the Theory of Anti-Value Acts——Including a Discussion with Professor Zhou Guangquan

行为无价值论与结果无价值论的争论具有重要意义。行为无价值论的主要缺陷在于:强调犯罪的规范违反性,与保护法益的刑法目的相冲突;突出刑法的行为规制机能,偏离了罪刑法定主义的实质;普遍承认主观的违法要素,导致认定犯罪的整体性,既混淆了违法性与有责性,也不利于区分未遂犯与不能犯,且不利于贯彻共犯从属性说;注重主观的正当化要素,不仅未能限制刑罚适用,反而扩大了处罚范围;采取规则功利主义,导致对国民行为的过度干预,也不利于保护法益。结果无价值论在防止过度干预、采取自由主义原则的同时,将违反刑法目的的事态作为禁止的对象,不仅能够克服行为无价值论的缺陷,而且可以在实现报应正义的同时,实现特殊预防与一般预防。

The debate between the theory of anti-value acts(Handlungsunwert) and the theory of anti-value consequences(Erfolgsunwert) is of great significance.The main defects of the former are that it focuses on crime as a violation of norms,which runs counter to criminal law's aim of protecting legal interests;it highlights criminal law's function in regulating behavior,thus deviating from the essential principle of a legally prescribed punishment for a specified crime;and it gives wide acceptance to subjective elements of illegality,leading to a holistic determination of crime,thus confusing illegality with responsibility.It also blurs the distinction between attempted and unrealized offenses,and is not conducive to the application of the theory of the subordination of accomplices.Its focus on subjective legitimized elements not only fails to restrict the application of punishments,but actually expands their scope,and its adoption of rule utilitarianism leads to undue interference in citizens' conduct.The theory of anti-value consequences prevents undue interference and adopts the principle of liberalism,while at the same time taking as the target of its prohibitions those situations that contravene the aims of criminal law.This not only overcomes the shortcomings of the theory of anti-value conduct but also achieves general and special prevention while realizing retributive justice.