大陆法系刑法理论略述(上)

Criminal Law Theory of Continental Law System(Ⅰ)

大陆法系刑法理论主要分为古典学派(旧派)和近代学派(新派)。古典学派最早系统阐述了罪刑法定原则和罪刑相适应原则;该学派认为刑事责任的根据在于意志自由,刑事责任本质上是一种道义责任;在刑罚论方面,早期古典学派有学者主张目的刑论,但大多数古典学派学者主张报应刑论。近代学派对犯罪原因进行了开创性的研究,该派认为刑事责任的根据在于行为人的反社会人格;基于社会责任论,近代学派反对报应刑论,主张目的刑论,认为刑罚目的在于防止再犯、防卫社会;近代学派在保安处分和刑事政策研究方面也作出了重大贡献。古典学派与近代学派就意志是否自由、个人本位还是社会本位、刑事责任本质为何、在犯罪认定上应当坚持客观主义还是主观主义、刑罚根据是什么等领域展开了长期论战。论战结果是两派在责任论、刑罚论等多方面走向融合。两派论战还促进了后期古典学派的形成和发展。二战以后,西方刑法学者通过对法西斯刑法思想的清算和以往刑法思想的反思,又提出了一些新的刑法理论。

The mainland criminal law system falls into the classical school and the modern school. The classical school first expounds principles of convictions and crime adaptability. The school argues that the basis of the criminal liability is the freedom of will and it is essentially that of morality. As for penal theory, in the early days of the classical school, some scholars claim intent penal theory, but the majority of the classical school scholars claim retribution penal theory. The modern school has done pioneering research on reasons of crimes. They hold that the basis of the criminal liability is the doer＇s anti-social personality. According to the theory of social liability, the modern school objects to retribution penal theory and is in favor of intent penal theory. They argue that the purpose of punishment is to prevent further crimes and protect the society. The modem school has also made great contributions in taking disciplinary action to ensure public security and researching on penal policy. The classical school and the modem one have been debating about the following topics for a long time： whether will is free; whether it is personal standard or social standard; what is the essence of criminal liability; whether one should insist on objectivism or subjectivism when convicting somebody for a crime; what is the basis of punishment. Finally the two schools agree on liability theory and penal theory. The debate has also promoted the formation and development of the later period of the classical school. After WWII, western criminal law scholars have also put forward a new theory on criminal law after exposing and criticizing the fascists＇ criminal law thoughts and meditating the past criminal law thoughts.