邓玉娇案件与罗克辛的客观归责理论

On the Case of Deng Yu-jiao and the Theory of Objective Imputation by Claus Roxin

曾引起全国关注的邓玉娇案件引出了客观归责理论的借鉴问题。邓玉娇案件的基本事实表明,除非存在强奸,该案依我国刑法只能是防卫过当,至多免刑而不能免责。从比较研究的角度,以德国刑法衡量该案,在防卫过当情况下,邓玉娇仍然有机会获得免责无罪的结论。德国刑法第33条是罗克辛教授客观归责理论的具体体现之一。我国引进该理论还存在理念和体系的障碍。

The case of Deng Yu-jiao has attracted nation-wide attention. Accordingly, the theory of objective imputation gradually came into people＇ s focus. The basic circumstances of the case have demonstrated that in accordance with provisions of the Criminal Law of PRC, the judgment should be excessive self-defence unless rape is constituted. Though punishment can be exempted, the criminal liability has been determined. While from a perspective of comparative study, and in accordance with provisions of German Penal Code, there is possibility that Deng would be acquitted of the crime. The theory of objective imputation proposed by professor Roxin has been elaborated in the Article 33 of German Penal Code, but there are still obstacles of ideas and system for our country to introduce this theory.