功能责任论中责任和预防的概念 兼与冯军教授商榷

The Concepts of Liability and Prevention in Functional Liability Theory A Discussion with Professor Feng Jun

今天德国刑法的任务已经从罪责报应转变为预防,与此同时,规范责任论开始被功能责任论所取代。预防的思想进入犯罪论体系后,作为刑法教义学传统概念的责任与预防的关系便成为讨论的焦点。Jakobs认为责任和预防有共同的本质,责任是由一般预防确定的。Roxin采取了比较折中的做法,并且赢得了多数学者的支持。他主张在形式上完全保留责任,但要补充进预防性处罚必要性的因素,并将这一综合体称为负责性。德国刑法教义学紧密结合立法的传统提醒我们,要从本国现行法出发选择最切合实际的责任观念。我国刑法在犯罪论中原则上采用的是规范责任论,只在分则个别条文中突破规范责任论的范围,将预防的必要性纳入犯罪成立的前提,而在量刑规则上却全面体现了功能责任论的主张。

In contemporary the task of the German Criminal Law has changed from retribution of guilt to prevention. At the same time, the normative liability theory has been replaced by functional liability theory. However, since the concept of prevention grew more influential in the system of crime constitu- tion, academic discussions focused on the relationship between liability and prevention. Jakobs thinks that liability and prevention have a common essence. In other words, the liability is determined by general pre- vention. Roxin takes a more eclectic approach, which has been supported by the majority of scholars. He advocates fully retained liability in form, but would like to also emphasize the necessity of preventive punishment. He calls this complex accountability. The development of German criminal law doctrine re- minds us that the conceptual evolution of liability must be based on national legislation. Through the ex- amination we can see that the Chinese Criminal Law in principle follows the normative liability theory, while only a few articles in specific provisions break the rule and bring the necessity of prevention into the premise of crime constitution. In contrast, the sentencing rules have fully embodied the functional theory of liability.