论罪责对犯罪论体系的影响——以期待可能性为基点

Influence of Responsibility for an Offence on Criminal Theoretical System

罪责作为责任的核心含义的形成,经历了从团体到主观、到个人责任的发展过程,最终成为研究犯罪论至关重要的构成要素。然而,时至今日,罪责在犯罪论的研究中,却显出日渐衰微的趋势。期待可能性在犯罪论体系中引起的两难选择问题,促成了大陆法系国家对犯罪构成理论进行修正和调整,但这种调整仍然无法完满地解决超法规的期待可能性免责事由的尴尬位置问题,欲彻底解决问题,就需要建立开放的犯罪构成的构架。

This article is based on the centre idea of the responsibility for an offence-the special nature of the expectation possibility in responsibility for an offence. Since the expectation possibility is difficult to achieve rational form, the study of responsibility for an offence which takes it as a core is on the decline. Objectivism criminal law tried to weaken the status of responsibility for an offence in the whole criminal theoretical system to ensure the certainty of criminal law, which hindered the realization of essence justice at the same time. Civil law countries have been revising and adjusting the composition of crime for solving the drawback brought by the expectation possibility. However, this kind of adjustments is unable to avoid the awkward position of the extra-statute exception incident of the expectation possibility for the confinement of the inherent form of the criminal theoretical system in civil law system. In order to save the stiff theoretical system of criminal law through the participation of the criminal administration of justice, we set up the assumption of building open composition of crime.