犯罪论体系之争的学派渊源

The School Origin of the Debate on Crime Theory System

中国刑法学界当下的犯罪论体系之争是一场没有确切宏观学术史意义体认的学术论争。只有从刑法学知识在世界范围内发展流变的学术史意义上去深入检讨犯罪论体系之争,特别是认真考究三阶层犯罪论体系和四要件犯罪构成理论的学派渊源,才能理解这场学术论争的性质。中国四要件的犯罪构成理论学自苏联,但并没有发展出根本上不同于苏俄犯罪构成理论的中国化理论。以四要件的犯罪构成理论为核心的苏俄刑法知识是刑事黑格尔派经过马克思哲学唯物主义改造后的学术发展。以三阶层犯罪论体系为核心的德日刑法知识则归属于从受到康德影响的费尔巴哈到新康德哲学对德国犯罪论体系造成深远影响和不断创新的学术一脉。当下中国的犯罪论体系之争是具有特定学派演变背景的刑事德日派和刑事苏俄派之争。

The debate on crime theory system of the current Chinese criminal law academic circles is an academic contro- versy which has not been confirmed by the precise sense of the macro academic history. The nature of the controversy cannot be defined until it has been examined from the academic history view about the development of the criminal law theory worldwide, especially analyzed with the school origins of the three-rank crime theory system and the four-element crime constitution theory. The Chinese four-element crime constitution theory inherited from Soviet Russia has not been a sinicized theory which is radically different from the former. Soviet Russia criminal law knowledge is the academic advancement of the criminal Hegel school after the materialist transformation by Marxist philosophy. German and Japanese criminal law knowledge is attributed to the constant innovation academic tradition from Feuerbach influenced by Kant to German crime system profoundly affected by Neo-Kantianism. The debate on crime theory system of the current China is an argument between the criminal German and Japanese schools and the criminal Soviet Russia school which have particular school evolution context.