刑法目的观转变简史——以德国、日本刑法的祛伦理化为视角

刑法的目的是刑事立法与司法的界限,是刑法学最为基本的问题。自启蒙以来,德日刑法目的观的不断流变表明,刑法目的由其所处的时代精神决定。在蔑视人权、专制统治时代,强调刑法目的是维护国家道义、社会伦理; 在提倡保护人权、重视宪法、实行法治的时代,强调刑法目的是保护宪法性法益。当前,德日两国刑法学界一般认为,刑法的目的是保护( 宪法性) 法益,在刑事立法和司法中,应将单纯违背社会伦理而没有任何外部侵害性的行为排除在犯罪之外。

Serving as the bound for criminal legislation and law is the most fundamental issue in science of criminal law. Since justice, purpose of criminal Enlightenment, the ever changing conception of purpose of criminal law in Germany and Japan indicates that purpose of criminal law is determined by spirit of the times. In times of autocracy when human rights were disregarded, safeguard for national morality and social ethics were emphasized as purpose of criminal law; whereas in times protection of human rights are and rule of law is practiced, protection of constitutional promoted, constitution is given priority legal interests is stressed as purpose of criminal law. Currently, scholars of criminal law in both countries hold that purpose of criminal law lies in the protection of constitutional legal interests, and in criminal legislation and justice, no act without external harms to society, even if it goes against social ethics and moral principle,should be criminalized.