再论新刑法的基本立场——与张明楷教授商榷

On the Basic Standpoint of the New Criminal Law——Argument With Professor Zhang Ming-kai

旧刑法中有主观主义的反映,新刑法中也的确有明显的客观主义表现。但是,张明楷教授据以得出"旧刑法向主观主义倾斜,新刑法向客观主义倾斜"这一结论的论据却缺乏足够的说服力。在用"向客观主义倾斜"来表述新刑法的立场时,不能忽略新刑法中同样突出的主观主义表现。只有我们对主观主义真正重视起来,全面、透彻地认识和了解刑法中的主观主义传统,才能更好地剔除其中的消极因素,顺利地继续"向客观主义倾斜"。

Subjectivism is embodied in the old criminal law, and objectivism is also reflected in the new criminal law obviously. However, the grounds of argument which support the conclusions that the old criminal law is in favor of subjectivism and the new one gives preferential treatment to objectivism are not convincing. When the standpoint of the new criminal law is explained as favor of objectivism, the embodiments of subjectivism which are equally conspicuous should not be neglected. Only when we attach importance to subjectivism in earnest and understand the subjectivism trend in the criminal law, can we discard the negative elements of the subjectivism in a better way and continue to lean to objectivism smoothly.