定量因素在犯罪成立条件中的地位——兼论犯罪构成理论的完善

On the Position of Quantitative Measuring Factors in Establishing Crimes——Also on the Perfection of the Theory of Constitution of Crime

在刑法中规定定量因素不是我国首创,各国根据国情的不同,对轻微反社会行为或者交司法机关以诉讼方式处理,或者交行政机关予以行政处罚。不同国家选择不同路径,既是其主观考量的结果,也有客观情势使其不得不然的因素。我国刑法中定量因素的存在有其充分理由;行政处罚、劳动教养等制度虽然有待于完善,但这不是否定刑法中的定量因素的理由。对刑法明文规定的和犯罪构成要件有关的定量因素应在犯罪成立的积极条件中进行形式判断,对综合性的定量因素应当在犯罪成立的消极条件中进行实质判断,从而将“情节显著轻微危害不大的”的行为予以剔除。

To provide the quantitative measuring factors in criminal law was not initiated in China. Different countries have dealt with the minor antisocial conducts in different ways according to their specific actual situations. These conducts are either handed over to the judicial organs and dealt with in the litigating way or handed over to the administrative organs and imposed administrative penalty. Different countries choose different ways, which is the result of subjective consideration, and also involves factors of being compelled by objective circumstances. The existence of the quantitative measuring factors in the criminal law of China is justified by sufficient reasons： although such systems as administrative penalty and reeducation - though - labor were waiting to be improved, this is not the reason to deny the quantitative measuring factors in the criminal law. The quantitative measuring factors relating to the constitutive elements of crimes expressly provided by the criminal law should be formally judged in the positive conditions of the establishment of crime, and the comprehensive quantitative measuring factors should be substantively judged in the negative conditions of the establishment of crime. Accordingly, ＂if the circumstances are obviously minor and the harm done is not serious＂ , the conducts can be eliminated.