涉恐犯罪中抽象危险犯扩张适用之批判

Critique on the Broadened Application of Potential Damage Offense in Terrorism-Related Crimes

抽象危险犯由于迎合了当前风险社会背景下对于恐怖犯罪的打击需求而备受推崇，但与深受刑事政策影响的刑事立法不同，刑事司法必须兼顾法益与人权保护。目前刑事司法有不当扩张适用抽象危险犯的趋势．导致刑法适用的机械与僵硬，有“客观归罪”之虞。表意犯理论作为化解涉恐犯罪中抽象危险犯副作用的一剂良药，跨越主观故意“知”与“欲”的藩篱，侧重考察行为背后的特定意思表示，以此来作为入罪标准，是判断不法意识的良好途径。最终可践行主客观相统一原则，实现反恐与人权保护的双重目标。

The idea of potential damage offense has been applauded because it is a response to the demand of combat against terrorism currently. But different from criminal legislation which has been under profound influence of crime-related policies, criminal judicature has to emphasize both on legal interests and human rights. Currently, there exists a tendency that criminal judicature is improperly broadening the application of potential damage offenses, which may steer criminal judicature towards rigidity and is prone to objective culpability. Will expression offenses theory is a good remedy to counter the byproducts of potential damage offenses in terrorism-related crimes, it breaks the walls between awareness and motivation in subjective factors and prioritizes on come certain will expression hidden under the act. A conviction criteria based on this theory can be used as a ideal way to judge illegal wills, in expectation to combat terrorism and meanwhile protect human rights.