平心静气说“主义”--试与周光权教授对话

Discuss “Doctrines”Calmly--Try A Dialogue with Professor Zhou Guangquan

客观主义与主观主义的区分标准只有一个,即是否采取了"犯罪征表说",凡是未采取"犯罪征表说"的学说就不能归入主观主义。坚持客观主义,推不出"事实判断先于价值判断"、"客观判断先于主观判断"等结论。犯罪认定的过程是一个目光往返于规范与事实之间的反复诠释涵摄的过程。主观罪责不等于犯意,将重视行为主观侧面的学说一概归入主观主义值得商榷。如果刑法体系的建构存在一个目的理性,那么就必须坚持主观罪责是刑事责任的基本依据。

The distinction between objectivism and subjectivism has only one criterion, namely whether the doctrine of criminal manifestation is adopted. Doctrines have not adopted it should not be classified as subjectivism. Adhering to objectivism, the conclusion that factual judgment precedes value judgment and objective judgment pre- cedes subjective judgment cannot be pushed out. The process of criminal cognizance is one of repeated interpreta- tion and subsumtion between norms and facts with gaze back and forth. Subjective guilt is not equal to criminal in- tent. It is questionable that all doctrines that pay attention to the side of subjective behavior are classified as subjec- tivism. If there is a purpose reason in the construction of criminal law system, it is necessary to insist that subjec- tive guilt is the basis of criminal responsibility.