我国刑法中主观超过要素的立法考察及其修正

Legislation Review and Revision of Criminal Law in China Over Subjective Factors

在我国四要件犯罪构成体系中,主观超过要素应当是隶属于犯罪构成的主观要件,同时独立于故意,无需客观要素与之对应的一种选择性构成要件要素。根据超罪过性、超客观性和功能性这三个判断标准,可以在我国《刑法》中找到有关主观超过要素的规定。但是主观超过要素存在诸多不合理之处,它提前了犯罪既遂的时间点,有违罪责刑相适应原则,存在重刑主义之嫌;部分主观超过要素还存在不恰当地限缩犯罪圈的问题;另外,主观超过要素的内隐性会造成司法实践中证明困难和操作随意的双重困境,在其客观化后还可能导致罪名、罪数的认定混乱。正是因为存在这些弊端,有必要结合主观超过要素本身的可变更性,对我国《刑法》中现存的主观超过要素进行修正,具体包括构成要件精简化和主观要素客观化这两种方案。

Over subjective factor derived from the criminal theory of continental law system is also an important concept relating to constitution of crime in Chinese criminal theory. Because the three-stage crime constitution system and four-condition crime constitution system correspond virtual- ly and they are both thinking method in essence, the concept of over subjective factor generated from the former can find space in the latter. In our country＇s crime constitution system consisting of four conditions, over subjective factor should be a selective and subjective element which is affiliated to the subjective condition but independent of intention without corresponding objective factors. Ac- cording to the standard consisting of beyond intention, beyond objectivity and functionality, provi- sions about over subjective factor can be found in criminal law of our country. However, there are numerous defects of over subjective factor. To be specific, this concept advances the time point of crime accomplishment, breaches the principle of compatibility of crime, responsibility and punish- ment, and owns the suspicion of severe-punishment doctrine. The issue of improperly narrow crime circle exists in part of over subjective factors. In addition, the implicitness of this concept gives rise to double binds of proving difficultly and operating casually in judicial practice. It can make the name and number of crime identified chaotically as well after being objectified. Because of afore mentioned disadvantages, it is necessary to amend existing over subjective factors in criminal law of our country based on the modifiability of this concept itself, including simplification of crime institu- tion and objectification of subjective factor.