犯罪故意的古今流变——兼评方法论意义上故意与过失的界分

Historical Evolution of the Concept of Criminal Intention——Also on the Historical Evolution of Methods of Demarcation Between Intention and Negligence in the Methodological Sense

早自两千年前中国传统刑律就已经明确了故意犯罪和过失犯罪的责任区分,而在欧陆刑法告别结果责任还是近代以来的事情。犯罪故意的涵义在中国历史上经历了诸多变迁。在故意和过失的分界问题上,古代刑律人命犯罪"六杀"所蕴含的类型式思维模式,相较于今之刑法概念式二元界分模式,在方法论上有着重要的启示意义:故意与过失界限纠葛之解决,应以概念式思维为基本,以类型式思维为补充。古代刑律并非自觉而近于直觉地运用颇为近代法学推崇的类型思维模式,体现出中华法系的早熟和早慧。刑法立法和刑法解释可以考虑从传统刑律的本土资源中汲取营养。

The traditional Chinese criminal law had made clear distinction between in- tentional responsibility and negligent responsibility as early as two thousand years ago whereas the principle of consequence liability was abandoned by European continental criminal law only in modern times. The connotation of criminal intention has experienced many changes in Chi- nese history. As far as the distinction between intention and negligence is concerned, compared with ＂the conceptual dualistic thinking mode＂ of the modern criminal law, the ＂ typol thinking mode＂ embodied in the ＂six categories of homicide＂ in ancient Chinese criminal ogical codes has important enlightenment significance in methodology. The problem with the distinction be- tween intention and ne method and ＂typologic igence should be solved by using ＂conceptual thinking＂ as the basic thinking＂ as a supplementary method. The intuitive, rather than con- scious, application by ancient Chinese criminal codes of the ＂ typological thinking mode＂, which is held in high esteem by modern legal scholars, showed the pre-maturity and precocity of traditional Chinese legal system. China should draw on its own native resources of ancient crimi- nal codes in the adoption and interpretation of criminal law.