刑事制定法与习惯法冲突之解决——论法教义学视野下习惯法的运行逻辑

Solution to the conflict between criminal law and customary law: The operation logic for customary law from the perspective of dogmatics

法教义学的路径可以缓解当前司法人员面对刑事制定法与习惯法冲突时所面临的尴尬。法教义学视野下习惯法的运行逻辑主要通过对犯罪成立要件的判断来实现。习惯法于规范构成要件要素和开放的构成要件的认定中具有较大运行空间,但为保证构成要件的定型性,在构成要件解释时,其他要素或要件的解释应尽可能排除习惯法的影响。在违法性判断阶段,习惯法的判断主要是借助社会相当性理论来实现。由于违法的判断是实质的、具体的,故习惯法在此的判断应当结合具体个案分析。在有责性判断中,违法性认识尽管于理论上是习惯法出罪的一条路径,但实际功用很小,更合适的路径应是期待可能性的判断。然目前对期待可能性之理解过于偏狭,应依规范责任论对这一理论进行适当重构。

The path of dogmatics can alleviate the judicial personnel’s discomfiture in the face of the conflict between criminal law and customary law. From the perspective of dogmatics, the operation logic of customary law is mainly realized by the judgment of crime constituents. The customary law has large operation space in regulating normative constituents and their open recognition. But in order to ensure the shaping elements of these constituents, other elements should be interpreted as far as possible to eliminate the influence of the customary law. In judging criminal illegality, the judgment of customary law is mainly realized by social considerable theory. Because judging illegality is real and concrete, judgment of the customary law should be combined with the specific case. In judging culpability, even though illegality cognition is, in theory, a path of crime for the customary law, the actual effect is very small. A more suitable path should be looking forward to the possibility of judgment, which is, however, very limited. Therefore, the theory should be properly constructed in accordance with the normative theory of culpability.