论域观下的无被害人犯罪概念

The Concept of Victimless Crime in the Domain of Discourse

不同的论域下有不同的犯罪概念。目前给无被害人犯罪所下的定义存在着论域不清的问题。无被害人犯罪的概念应区分刑法还是犯罪学论域。关于无被害人的含义是界定概念的关键。刑法中,无被害人犯罪的内涵要素是违背伦理道德并法益侵害不明显。犯罪学中,内涵要素是违背伦理但社会危害性小。外延上要与隐形犯罪、没有在意的犯罪相区别。

Different concepts of crime are discussed in different domains of discourse. The definition of victimless crime lies in the lack of explicit domain of discourse. The domain of criminal law and that of crimi- nology should be distinguished so as to define the victimless crime, where the definition of victimless is the key. In theory of criminal law, the constituents of victimless crime refer to crimes against morality with no seri- ous harm to legal interests. In theory of criminology, the constituents of victimless crime refer to crimes against morality but with little social harm. The boundary for the concept of victimless crime is different from invisible offence and offence without knowing of being offended.