刑事责任与人权保障——以中外刑事责任理论的比较为视角

Criminal responsibility and safeguarding of human rights——A comparative perspective

在刑法意义上,刑事责任理论应成为犯罪人人权保障的担纲者。在我国现行刑事责任理论体系中,人身危险性扮演了重要的角色,它与社会危害性相结合共同构筑了我国刑事责任的全部内涵。相应地,传统的罪刑相适应原则亦被改造而成罪责刑相适应原则。这不但有违刑法的基本原则,而且也不符合罪与刑的逻辑连接,不能充分体现现代法治国家的精神伦理和人权保障。对此,改造的关键在于将责任评价和刑罚量定作为两个独立的阶段予以分离,把人身危险性因素从传统责任体系内予以析出,而仅在量定刑罚时将其作为预防因素,结合有利于犯罪人回归社会之需要来缓和或消解责任所决定的刑罚。

In criminal law, criminal responsibility theory should take responsibility for the safeguarding of human fights of criminals. In Chinese criminal responsibility theory, the factor of dangerousness of criminal, which plays an important role, combined with the consideration of harm to society by criminal, constructs the whole meanings of Chinese criminal responsibility theory. Accordingly the traditional principle of crime-punishment proportion is reconstructed as the principle of crime-responsibility-punishment proportion. However, the practice not only breaches the basic principle of the criminal law and does not accord with the connection of crime and responsibility, but also violates the spirit of the law and the principle of human rights. It is important that we should separate punishment-determining from conviction and the factors of dangerousness of criminal from the system of traditional criminal responsibility. The dangerousness of criminal, however, which can only be taken as a factor of prevention, mitigates or cuts down the punishment decided by criminal responsibility.