刑事政策视野中“无被害人犯罪”的概念界说

Defining the Concept of the Victimless Crime in View of Criminal Policy

随着世界范围内非犯罪化运动的发展,"无被害人犯罪"的研究也相伴而生,而目前国内外刑法学界对无被害人犯罪的概念并没有统一且准确的界定。对"无被害人犯罪"概念界定的价值主要是从刑事立法政策层面谈及的。而在刑事立法政策视野中探讨"无被害人犯罪"概念,它一定是在犯罪学意义上而言的,而不是刑法规范中的"犯罪"概念。那么为什么冠以"无被害人"称谓呢?笔者认为,应结合"无被害人犯罪"概念首次出现的背景和特别指代的行为对象对"无被害人"作限制性的理解,而不能仅就"无被害人犯罪"概念的字面表述作绝对逻辑性的解释,事实上这里的"被害人"并没有深入到国家被害和社会被害的认识程度,仅仅是指没有直接的个人被害人而已。

With the development of the movement of decriminalization worldwide, the notion and study on the victimless crime come into being. However, the concept of victimless crime has not been unified and accurately defined by penal scholars, both home and abroad. The value of defining the concept of victimless crime is mainly from the perspective of criminal legislation policy. Yet defining the victimless crime from the perspective of criminal legislation policy has to make itself sensible in light of criminology instead of criminal law. Why, then, name it as a ＂non-victim＂ crime？ It is argued that one should examine the specific context in which the concept of ＂victimless＂ first appeared and those special acts it referred to to understand its restrictive meaning, rather than interpreting it literally in a purely logical way. In fact, the ＂victim＂ in this context has not yet been taken to refer to a certain state or society being victimized ; it is just the situation where no direct individual victim can be found.