质疑“客观的超过要素”概念

Some Doubts on the Concept of "Measurement of Penalty by Factual Harms

我国著名刑法学者张明楷教授提倡的“客观的超过要素”概念 ,不仅存在自相矛盾之处 ,而且与我国刑法基本原则及现行刑法理论体系存在若干“不兼容”现象 ;此外 ,在价值趋向角度 ,该概念有客观归罪之嫌 。

The concept of 'verdict of guilt by external factors' put forward by Professor Zhang Mingkai, a noted scholar on criminal law in China, is self-contradictory and does not quite agree with the basic principles in China's Criminal Law, or the current theoretical framework of the penal code. Moreover, this concept is close to external attribution of guilt , therefore, it fails to embody fully the spirit of human rights protection in the criminal law .