风俗犯罪正当化初论

Research on the Justification of Moral Crime

现代刑法中,侵害社会风俗、习惯的行为犯罪化是存有争议的,亦即将这些行为纳入刑法的规制范围是否合理还未形成较为一致的意见。为了解决此种争议,不应继续固守传统的思维模式与研究方案,而应在既有的研究成果的基础上,寻求能够引领关于风俗犯罪的研究走向深入的有效方法。而以正确地界定风俗犯罪与划定其所涉罪名为前提,进而探究风俗犯罪正当化的根据与标准,再将风俗犯罪逐一置入此标准进行研判,不失为一个合理的路径。

In the modern criminal law, the criminalization of the behavior against social customs and habits have always been controversial. It means that there is no consensus as to whether these behaviors should be brought into the scope of criminal law regulation. In order to solve this dispute, we should not continue to stick to the traditional mode of thinking and research plan, and instead we should find the way of leading the research of moral crime further on the basis of existing research achievements. It is regarded as a reasonable path that under the premise of defining the moral crime reasonably and determining the accusation precisely, we can explore the basis and standard of the justification of moral crime, and then judge the moral crime by putting them into this standard one by one.