刑法中的犯罪合作模式及其适用范围

The Criminal Cooperation Pattern in Criminal Law and Its Application Scope

社会转型时期法定犯数量大量增加,带来司法实践中严重的"刑、民交叉""刑、行交叉"问题,故有必要重视犯罪合作模式。犯罪合作模式意味着行为人在犯罪后以自身的努力弥补犯罪带来的损失,从而使其行为被评价为犯罪的意义降低,虽具有应罚性,但并无需罚性。犯罪合作模式作为责任折抵的方式,具有重要的激励效应,符合比例原则的要求,因而会带来犯罪赦免效果。犯罪合作模式不是基于报应,而是立足于恢复,需要在应罚性基础上判断需罚性,当行为人的行为具有应罚性而欠缺需罚性时,就不再追究刑事责任,故其与目的理性的犯罪论体系具有高度契合性。我国刑法有关犯罪合作模式的规定属于立法创新,有助于划清刑、民边界和完善轻罪体系,并具有扩大适用的必要。

The number of regulatory offences in the period of social transformation has increased great- ly, bringing about important issues of ＂intersection of criminal law and civil law＂ ,＂intersection of criminal law and administrative law＂ in judicial practice. Therefore, it is necessary to attach importance to the crimi- nal cooperation pattern. The criminal cooperation pattern means an offender makes up for losses caused by his crime through his own efforts after the crime, so the significance of convicting his behavior as a crime is reduced, that is, such behavior deserves punishment but it is unnecessary to punish the offender. The crim- inal cooperation pattern, as a way of liability offset, has important incentive effect and complies with the re- quirement of proportionality principle and thus leads to the effect of crime. Criminal cooperation pattern is not based on retribution, but the recovery, so the necessity for punishment is judged on basis of that the of- fender deserves punishment. When the offender deserves punishment and there is lack of necessity for pun- ishment, criminal liability will be not held, so the criminal cooperation pattern highly accords with the sys- tem of the theory of crime with rational purpose. The criminal cooperation pattern in criminal law of China is a legislative innovation, which can help demarcate the boundary of criminal law and civil law, improve the misdemeanor system, so it is necessary to expand the application scope.