论故意在犯罪论体系中的双层定位——兼论消极的构成要件要素

Double Positions of Intent in the Criminal System: Elements of Negative Constitutive Requirements

在三阶层犯罪论体系的发展历程中,故意经历了由罪责要素到构成要件要素,再由构成要件要素分裂出罪责要素的过程。在肯定构成要件故意和罪责故意的体系性方案里,事实性故意属于构成要件故意,而责难性故意则隶属罪责阶层。这种双层定位,不仅能合理地解释未遂、目的犯中的目的等现象,而且能自洽地解决假想防卫、假想避险等等这类针对正当化前提事实的认识错误的问题。消极的构成要件要素论尽管能直接根据这类认识错误排除构成要件符合性,具有便捷性的优势,但这只是该理论的唯一优点。如果坚持三阶层犯罪论体系,则不应采消极的构成要件要素论。消极的构成要件要素论的不足之处还在于,对行为人成立故意的要求过于苛刻,且忽视了正当化事由在整体法秩序上的意义。

In the historical development of the three-level criminal system, the element of intent has experienced many stages. It was firstly only an element of culpability, and then an ele- ment of constitutive requirement. Some times later the intent is split into two parts, one part in the level of constitutive requirement, the other in that of culpability. In the systematical program with these two separate parts, the factual intent is a question of constitutive requirement, while the in- tent of blame situated in the level of culpability. The double positions of intent in the system can not only illustrate the phenomena of attempt, intention etc. , but also resolve the issue of the wrong judgment of the conditions of justification, such as imaginary defense, imaginary emergency, etc. This kind of cases of mistakes happened regularly in reality. To deal with this wrong judgment of the conditions of justification, some scholars may use the theory of the elements of negative consti- tutive requirement, which could preclude the constitutive requirement and resolve the problems quickly. However, this is the only advantage of this theory. When we want to maintain the three- level system, it is not appropriate to adopt the theory of the elements of negative constitutive re- quirement. If we adopt this theory, it would result in that it is impossible to punish the perpetrator, in case he has not recognized all the conditions of justification. Furthermore, this theory neglects the significance of the conditions of justification from the perspective of the whole legal system.