刑法教义学的封闭与开放:社会理论知识的视角——以不作为共犯的边界为例

Closure and Openness of Criminal Law Dogmatics:The Perspective of Social Theory Knowledge——The Boundary of Complicity by Omission as an Example

刑法教义学体现出体系性和封闭性,但晚近以来,随着不作为犯等可罚性基础边缘领域的认定难题出现,单靠刑法教义学之知识已经不能完全处理相关问题。通过学术史梳理可以发现,形式客观说不能解决不作为共犯的边界问题;加入规范因素的形式客观说则摒弃了原本的形式理性,添加了大量主观、恣意且模糊的规则。德国刑法学界出现了加入社会学理论等相关知识的流派,以义务犯理论为代表,虽然可以解决不纯正不作为共犯的认定问题,但可能无法达到刑法教义学所要求的体系性。经过了社会理论知识的扩展和刑法教义学者自我阵地的坚守,可以发现刑法教义学应当坚持一定开放性基础上的封闭,即将社会理论等其他学科的知识转化为刑法教义学的语言纳入理论体系至终。

The criminal law doctrine is a comprehensive and self-contained system.However,in recent times,the emergence of complex issues such as the identification of punishable inaction has made it evident that relying solely on criminal law doctrine knowledge is no longer sufficient to address these problems.Looking back through academic history,it becomes apparent that the formal-objective theory is inadequate in dealing with the boundary problem of an inaction accomplice.By incorporating normative factors,the formal-objective theory has deviated from its original formal rationality and introduced many subjective,arbitrary,and ambiguous rules.In response,the German criminal law school has emerged and integrated sociological theory and related knowledge,exemplified by the theory of obligatory offense.This approach can help resolve the challenge of identifying impure inaction accomplices.However,it may not fully align with the systemic nature necessary for criminal law doctrine.As scholars have expanded their understandings of social theory and the role of criminal law doctrine,it has become clear that criminal law doctrine should maintain a certain level of openness while still remaining a self-contained system.This means that knowledge from other disciplines,such as social theory,should be translated into the language of criminal law doctrine and integrated into the theoretical system as a whole.