醉态下犯罪的罪过形式认定——英美刑法模式的提倡

Convictive Measures of Crimes Committed in the State of Intoxication—On the Advocacy of the Pattern of Criminal Laws in the UK &the US

中国对于醉酒后犯罪的规制采用德日刑法中的"原因自由行为理论",但醉酒下实施的犯罪常常难以认定。如果采用"构成要件模式",根据原因行为的主观罪过确定原因自由行为的罪过,在多数情况下将得出过失犯罪与无罪的结论,这与中国司法实践与公众法情感相悖。如果采用"例外模式",行为发生时的认识与意志因素又难以证明。事实上,中国对于醉酒后犯罪的规定与德日刑法存在本质上的区别,且没有"完全昏醉罪"的规定。因此,应当采用英美刑法中的"分裂模式",对责任能力与主观罪过分别判断,在责任能力的判断上,考察行为人在实施原因行为时的可预见性与可谴责性,在主观罪过的判断上,采用规范视角。

Crimes committed in the state of intoxication in China are regulated by the theory of “actio libra in cause”（alic）,but it is very difficult to measure the guilt of the criminal.If the theory of “compo-nent mode”is adopted and the guilt of actio libra in cause is measured by the subjective guilt of cause ac-tion,the conviction of negligence or innocence will be reached,which is inconsistent with China’s judicial practice and public feelings.If the theory of “exception mode”is adopted,it is hard to decide whether the person knows what he is doing or whether he does it out of his own will.The legislation about crimes in the state of intoxication in our country is different from that in Germany or Japan,and there is no such guilt as“crimes in complete intoxication”.In view of the dilemma,the pattern of “separate mode”should be a-dopted to judge the capacity for criminal responsibility and the subjective fault individually.The capacity for criminal responsibility is judged through the foreseeablility and culpability at the time of cause action, while the subjective fault is judged through regulation.