论刑法与侵权法的分界标准

On the Boundaries between Civil Law and Tort Law

刑法与侵权法的边界,不仅会受到其适用结果,即程序法的影响,还会受到本体论的影响。虽然程序法对刑法与侵权法的边界做了区分,但是,这种区分却具有从属性、暂时性的特点。从本体论的角度来看,作为划分民刑边界的两个主要标准,法益保护原则和伤害原则在面对侵权法时难有作为。而作为道德理论的功利主义和道义论,处理该问题的效果也不尽如人意。鉴于普遍恐惧理论具有实用性和包容性的先天优势,其能够充分吸收其他理论的优点,表达不当行为的外溢性,因此完全可以承担起划分刑法边界标准的使命。

The boundary betweem criminal law and tort law is not only influenced by the procedure, but also influenced by the ontology. Although the procedural law distinguish the criminal and tort law, however, this distinction is suberdinative and temporary. From the perspective of the ontology, as basic standards to draw the boundary of criminal law and tort law, the protecting legal interests and harm principle can not deal with this problem. It is difficult for the moral theories, such as deontology and utilitarian to resolve the problem either. The general fear could not only reveal the externals of undesirable acts, but also can absorb the advantages of all the theories. In short, it can accomplish the task of drawing the boundaries of criminal law.