刑事和解与传统刑事责任理论

Criminal Mediation and Traditional Theory of Criminal Responsibility

最近十年的刑事责任研究基本停滞,无法实现理论之明显提升,其重要原因在于,责任论始终以刑罚为唯一关注,使得刑事责任论与刑罚论难辨你我,无法获得超越于刑罚论的实质性内核。"刑事和解"的出现,为我们展示了对责任的另一种理解可能,从而为摆脱责任论的研究困境提供了难得的契机。以和解的责任观为线索,对传统责任论的核心内容展开深入反思,可以看到:责任的承担,不仅要面向国家,而且要面向被害人和社区;责任的实现方式,应从"刑罚—保安处分"的二元格局,迈向"刑罚—保安处分—刑事和解"的三元格局;责任的基本诉求,则应在传统的惩罚与预防的框架内,导入恢复性的价值目标。

The research on criminal responsibility in China has and we cannot transcend the level we have reached. In author＇ son of such situation is that theories on criminal responsibility been slowed down in recent years, s opinion, the most important reaonly put their eyes on penalty, so that theories on criminal responsibility and theories on penalty are almost the same. If so, it is not necessary for theories on criminal responsibility to exist, theories on penalty will take their place. However, the emergence of VOM （victim--offender mediation） has shown another possible understanding of criminal responsibility, and will broaden our horizons about it. This paper discusses the new concept of criminal responsibility in VOM＇s view, including the premise, subjects, objects, varied measures, and aims of criminal responsibility. In detail, in view of VOM, the premise of criminal responsibility is that the offenders have relatively free will. The primary subject to assume responsibility is the offender, but at the same time, the communi- ty is also responsible for the event. They are responsible to the victim and the community, not to the state. The measures to realize criminal responsibility include compensation, apology and community labor. The aim of these measures is to restore all parties. VOM itself will be an important criminal sanction different from penalty. Accordingly, the methods for the offenders to undertake their criminal responsibility will be penalty, security meas- ures, and VOM, not only penalty and security measures which we usually thought them to be. This paper analyses in detail the relationship among these three methods, especially their differences. At last, this paper discusses the aims of criminal responsibility. As far as we know, punish- ment and prevention are the two goals of criminal responsibility. VOM shows us a promising future that restoration grows to he one of the goals of criminal responsibility. The paper analyses in detail the relationship among these three goals.