期待可能性理论超规范化的反思--以学说、判例史的考察为中心

Reflections on the Non-normative Nature of the Theory of Reasonable Expectation:Focusing on the History of the Theory and the Case

从大陆法系的学说、判例史上考察,期待可能性作为超法规的责任阻却事由,在德国无论在理论上还是在实务中,都遭到了彻底的否定;在日本,虽然理论的通说肯定这一观念,但是在实务上采取了极为保留的态度。因此,考虑到这一观念对应的时代和社会的非常态性,以及该观念同罪刑法定原则之间的冲突,这一理论不应作为超法规的责任阻却事由,但这不妨碍其作为超法规的量刑事由。

In the history of the theory and practice of the criminal law in the civil law system, reasonable expectations have never been accepted as a cause of non-imputability in Germany; even in Japan, the judicial organs take a reserved attitude to the theory of the reasonable expectation in practice though it is acknowledged by the common theoretical opinions. Therefore, considering its historieal and social irregularity and its being in conflict with the principle of a legally prescribed punishment for a specified crime, the reasonable expectation cannot be accepted as a cause of non-imputability, but this does not prevent it from being accepted as a cause for discretion in the measurement of penalty.