刑罚应是刑法学的逻辑起点——对我国传统“犯罪中心论”理论体系的反思

Punishment:the Logical Beginning of Criminal Law

传统的刑法学是以犯罪为中心展开的理论体系:犯罪被认为是整个刑法学的基石,也是刑法学的逻辑起点和理论重心;罪刑关系被认为是刑法学的"主轴",犯罪在罪刑关系中处于基础的、主导的地位,刑罚是犯罪的后果,处于被动的地位。这种体系在当代已陷于"危机":犯罪概念的实质内涵迄今不能有效确定,意味着整个刑法学建立在"沙滩"之上;罪刑关系也难以担当整个刑法学的理论框架,无法统摄与支撑整个理论体系内容;犯罪在罪刑关系中的主导地位也被动摇,刑罚的主导性凸显。刑罚(或刑罚权)才是刑法学的逻辑起点和理论中心,"犯罪中心论"体系应当向"刑罚中心论"体系演变。

The orthodox theory of criminal law was based on the concept of crime, which was regarded as the cornerstone of the ＂theoretic building＂ of criminal law, and the relation between which and the concept of penalty was the frame of the whole theory. Crime＇s concept was basic, premise for the latter, while the latter was just the consequence of the former. Howev- er, the orthodox theory is in question now. Punishment is becoming more emphasized than before. Punishment should be the real logical beginning and theoretic centre of criminal law. And the orthodox theory based on crime should be abandoned and be changed into a theoretic system based on punishment.