刑法典修订以来若干重要理论问题新探索(上)──《刑法教科书》(2000年版)的新发展

New Exploration of Some Important Problems since the Amendment of Criminal Code(Ⅰ)──New Development of the Textbook of Criminal Law (Edition of 2000)

刑法法典化和刑法法典成熟化是刑事立法现代化的一种趋势；对犯罪概念应坚持形式定义与实质定义的结合与统一；刑法上主要有两种犯罪分类方法，一是根据犯罪的性质，一是根据犯罪的严重程度；犯罪构成可以分为法定的犯罪构成与现实的犯罪构成；事业单位、机关、团体、民办非企业单位作为法人犯罪主体时，应当对其内涵予以正确界定；犯罪客体是犯罪主体的犯罪行为所侵害的、为我国刑法所保护的社会利益，它既是犯罪的组成部分，又是犯罪构成的组成部分；应在刑法上规定罪过的概念并坚持“无罪过不为罪，也不受刑罚”的罪过原则，罪过不仅指故意与过失，而且还包括其他因素，罪过不仅有存在与否的区别，还有程度的差别；“持有”作为犯罪行为的形式，通常表现为作为，但有时也表现为不作为，甚至表现为两者的交叉，因此把它视为犯罪行为的第三种形式亦未尝不可；国家对犯罪人及其犯罪行为的评价和判断，属于刑事责任的内容；犯罪和犯罪构成的质变，由组成要素的性质、数量、结合方式三个因素决定，研究犯罪和犯罪构成的质变与部分质变，可以以此来构建刑法分则理论新体系。

The codification of criminal law and maturity of criminal code are a kind of tendency of medernization of criminal legislation, as to the concept of crime, combination and unification of definition in form and definition in essence should be stuck to; there are two kinds of classification of crimes in criminal law, one is in accordance with the nature of crime, another is in accordance with the seriousness of crime; criminal constitution can be classified as statutory criminal constitution and realistic criminal constitution; when institutions agencies, organizations, civilianrun nonbusiness units act as corporate subject of crime, its connotation should be correctly defined;criminal object is injured by the criminal act of the subject of crime, and is the social interests protected by the criminal law of our country. It is the constituent part of a crime, and the constituent part of criminal constitution as well; the concept of culpability should be laid down in criminal law, and the culpability principle of 'no culpability, no crime, and no punishment'should be stuck to. Culpability not only refers to intent and negligence, but also includes other factors, and it not only has the difference between existence and nonexistence, but also the difference in extent; 'Possession', as a form of criminal act usually expresses as act, but sometimes it also expresses as omission, even as cross of the two, therefore, it is possible to take it as as the third form of criminal act;the evaluation and judgment by the state of criminals and criminal acts belong to the contents of criminal liability, the qualitative change of criminal constitution is determined by three factors of constitutive elements nature, quality, and combinative patterns. Study of qualitative change and partial qualitative change of crime and criminal constitution can be used to construct the new system of the specific principles of the criminal law.