违法性判断的基准与行为无价值论--兼论当代中国刑法学的立场问题

Criteria for Deciding Unlawfulness and the Behavior-Based Approach

违法性论是刑法理论的试金石,研究违法性判断的基准问题,对于形成学派论争,全面推进中国刑法学的发展有重大意义。结果无价值论和行为无价值论思考违法性问题的路径不同,由此导致犯罪成立范围、认定犯罪过程、犯罪和刑罚的关系、刑法和社会的关联性都不相同。(二元的)行为无价值论充分考虑特定时期的社会现实、规范期待,注重刑法的行为引导功能,是合理的理论。根据这种违法性论,违法性判断的核心是行为,法益侵害只是决定"行为性质"的要素;刑法不是单纯为了弥补损害,而要着眼于让国民养成规范意识,防止损害再次发生。当代中国刑法学应当以(二元的)行为无价值论为基点来建构,以回应社会需要,促进公众的规范认同。

The concept of unlawfulness (Rechtswidrigkeit) is a touchstone of criminal law theory. The study of criteria for deciding unlawfulness is of great significance in debates between different schools of thought and in the all-around development of the discipline of criminal law in China. The concept of unlawfulness based on consequences (Erfolgsunwert) and that based on behavior (Handlungsunwert) approach the issue of unlawfulness in different ways, leading to differences in establishing the scope and determining the course of a criminal act, the relationship between crime and punishment, and the connections between criminal law and society. The (dualistic) determination of unlawfulness on the basis of behavior takes into full consideration the social reality and expected norms of a specific period and attaches importance to criminal law's function in guiding behavior; it is therefore a reasonable theory. According to this concept, behavior is the core issue determining unlawfulness, and violation of rights is no more than a factor determining the 'nature of the behavior.' Criminal law does not exist only to make restitution for injury, but also aims to cultivate citizens' awareness of norms to prevent possible future injury. Contemporary criminal law in China should be constructed on the basis of the (dualistic) behavior-based concept of unlawfulness in order to meet the demands of society and promote normative commitment on the part of the general public.