行为论与犯罪论关系论纲

Outline of the Relationship between the Behavior Theory and the Crime Theory

从行为论与犯罪论的关系角度分析,中国的犯罪构成理论是作为行为论的犯罪论,由于行为论被包括在犯罪构成理论中因而不具有独立的体系性地位,从而导致中国的犯罪构成理论难以充分实现罪刑法定原则所要求的人权保障机能;而日本的犯罪论则是作为行为属性论的犯罪论,虽然犯罪论与行为论相互分离,但是由于现存的行为论难以实现它本应具有的理论和实践的机能,从而导致行为论的体系性地位低下。本文从中日犯罪论体系互补的立场出发,尝试对两国的行为论以及犯罪论体系进行了重构。

The constitution of crime in China is comprehensive which includes the behavior theory and the crime theory as a whole. But such comprehensive theory is difficult to fully realize the function to guarantee human rights that is required by principle of legality. Though the behavior theory has separated from the crime theory and has been independent each other in Japanese criminal law, its position in the system is lower and lower. The reason is that the existent behavior theory cannot fulfill the theoretical and the practical functions that should have. Analyzed in terms of epistemology, the Chinese criminal law is the same as Japanese. The text tries to reconstruct the behavior theory and the systems of crime theory both in China and Japan according as the crime theories in two countries are complementary.