行为无价值与结果无价值正本清源——以存在、规范的视域展开

The Nature of Handlungsunwert and Erfolgsunwert:from the Angle of Ontology and Normativism

行为无价值论与结果无价值论之争自引入我国以来,在多个领域得到了展开。从学术史的角度考察,古典犯罪论体系以结果无价值论与存在论为双重基底,两者在理论上具有统一性。从判断基准上看,结果无价值论立足于实证的、可见的损害考察,偏向于存在论的立场。从哲学基础上看,结果无价值论所依托的行为功利主义立足于具体情况下的行为得失考虑,因此倾向于存在论立场,而作为行为无价值论哲学基础的规则功利主义倾向于规范论立场。其实,结果无价值与行为无价值的对立的本质是存在论与规范论的对立,与主观要素的阶层地位无关。德日主流学说都是主张以存在论为基础、兼顾规范评价的结果无价值论,并且两者有所融合。

Since the handlungsunwert and erfolgsunwert were introduced into our country,the debates over them have occured in many areas. From the angle of the history of academics,classic system of crime theory is based on erfolgsunwert and ontology,because they are unified. From the angle of the standard of judgment,erfolgsunwert is based on empirical and visible loss,and is inclined to stand by the stand of ontology. From the angle of philosophical ground,the act-utilitarianism on which erfolgsunwert is based considers the gain and loss from the specific situation,which tends to support ontology. On the other hand,the rule-utilitarianism on which handlungsunwert is based is inclined to support normativism. Therefore,the nature of the debate of handlungsunwert and erfolgsunwert is the opposition of ontology and normativism,and is unconnected to the position of the subjective elements. The mainstream theory in Japan and German is erfolgsunwert which gives first place to ontology and also takes normativism into consideration,and the two compromise each other.