犯罪基本特征之检讨——以“刑罚当罚性”为对象

An Inquiry About One Basic Characteristics of Crime

严重的社会危害性、刑事违法性和刑罚当罚性是刑法学界公认的犯罪三特征,但刑罚当罚性并不能准确反映犯罪的全部法律后果及犯罪、刑事责任和刑罚之间的辩证关系,不符合罪责刑相适应原则的基本内涵,故应以责任当负性代替刑罚当罚性。

The high harmfulness, breaking the criminal law and deserved punishment are the characteritics of crime, which is currently considered by the experts at a criminal law. However, I argue that deserved punishment neither can reflect the full result of law, nor can reflect the dialectic relation between a crime, criminal liability and a penalty; on the other hand, deserved punishment didn＇t accord with the basic meanings of principle of suitable punishment for crime ; thereby, incurring criminal liability should take place of deserved punishment . Deserved criminal liability means that a crime holds the charaeterities of incurring criminal liability.